A defendant shall be punished by imprisonment for two years.

34 days of detention before a judgment in the first instance is rendered shall be included in the above sentence.

However, the execution of the above punishment shall be suspended for three years from the date this judgment becomes final and conclusive.

378,700,000 won shall be additionally collected from the defendant.

A. Defendant

(1) misunderstanding of facts and misapprehension of legal principles

The Defendant, as indicated in the separate list of crimes in the judgment of the first instance court, was found to have been acting as an agent for experiment costs by receiving money from a graduate student as stated in the separate list of crimes in the separate list of crimes in the judgment of the first instance court. However, the Defendant merely provided experiment results and analysis data on behalf of a graduate student. The Defendant cannot be deemed to have provided convenience in preparing the main part of the thesis, and the degree holder did not necessarily have to do so directly to prepare the thesis. Thus, the first instance court did not consider the background and contents of the request for experiment, the result of the experiment, the impact of the research on the preparation and examination of the thesis, etc., and recognized that the Defendant was an unlawful solicitation based on the principles of social norms and good faith without examining the background and contents of the request for experiment, the result of the experiment, and the fact that the Defendant did not have a status as a guidance professor that may affect the examination of the thesis, and merely did not merely receive experiment expenses and entrusted experiment, and thus, the Defendant cannot be deemed to have been found to have been guilty of the Defendant 1’s breach of trust and additional collection.

(2) Unreasonable sentencing

Even if the facts charged in the instant case are found guilty, the sentence of the first instance judgment is too unreasonable.

(b) Prosecutors;

The sentence of the judgment of the court of first instance is too unfortunate and unfair.

2. Determination

A. Judgment on the mistake of facts and misapprehension of legal principles by the defendant

(1) Determination on the assertion that there was no illegal solicitation

In the crime of taking property in breach of trust, illegal solicitation refers to a solicitation that goes against social norms and the principle of trust and good faith, and in determining this, comprehensive consideration of the contents of the solicitation and the amount, form, and integrity of the business administrator, which is the legal interest protected, should be comprehensively considered, and such solicitation does not necessarily require an explicit statement (see Supreme Court Decision 96Do837 delivered on June 9, 1998).

Comprehensively taking account of the evidence legitimately examined and adopted by the first instance court, the Defendant continued to study the academic degree in the field of herbal medicine, but did not obtain a degree in the field of oriental medicine, and as a result, the Defendant is currently in office as professor of oriental medicine, and the Defendant received 300,000 or 9,000 won per capita from the degree holder to obtain a degree in his/her own or through guidance professors, so that the Defendant was requested to conduct experiments and requested by the experimental researchers to do so. Most of those who did not participate in experiments are required to attend the experiment only several times while the experiment is being conducted, and the Defendant did not obtain a degree in the field of oriental medicine, and it is difficult to recognize that the Defendant prepared a research paper as if the Defendant did not obtain a degree in the field of oriental medicine, based on the result that the researcher did not directly participate in or participate in the experiment. However, the Defendant’s assertion that the research paper was prepared as if he/she did not use the research paper as part of the Defendant’s research paper as part of the research paper’s research paper.

(2) Determination as to the assertion that the crime of taking property in breach of trust does not constitute a co-principal

In order to constitute a joint principal offender under Article 30 of the Criminal Act, it is necessary to implement a crime through a functional control over the functional act based on the joint will as a subjective element. Here, the intention of joint process is insufficient to recognize another person's crime and to allow it without restraint, and it is a single act to commit a specific criminal act with another person's intention and to shift one's own intention to practice by using another person's act. (See Supreme Court Decision 2002Do995 delivered on June 24, 2004).

However, in the case of joint principal offenders who jointly process two or more persons and commit a crime, the conspiracy or conspiracy does not necessarily need to be made directly and clearly, and may be made objectively and implicitly. In the case where the defendant denies the criminal intent together with the conspiracy, the subjective element is that the facts constituting such subjective element is proved by the method of proving indirect facts or circumstantial facts which have a substantial relation with the criminal intent due to the nature of the object. In this case, what constitutes considerable relation indirect facts should be determined by the method of reasonably determining the link of facts based on the close observation or analysis power based on normal empirical rule (see Supreme Court Decision 2005Do8645, Feb. 23, 2006).

On the other hand, as seen in the above facts, the defendant did not merely act as an agent for an experiment upon the request of a teaching professor, but provided him with the result of the experiment to the extent that he can use it as an essential part of the thesis. Furthermore, on the basis of the result of the experiment conducted with the experiment fees received from the academic sanitation, he prepared a separate examination paper from a different quantity of medical perspective, and actively used it as an experimental research result of the defendant, such as being published in the laboratory teaching assistant and the defendant in the international academic community, and the defendant received money directly from the holder of the degree without the instruction professor. The defendant received money from the holder of the degree 71 times without the instruction professor, and the defendant was acting as an agent for an experiment, so the defendant cannot be deemed to have received only the experiment expenses, and the defendant cannot be deemed to have been recognized to have been acting as an agent for an experiment, and the defendant sufficiently recognized the functional control over the act of taking advantage of the functional control over the crime of taking property in breach of trust. Therefore, this part of the defendant's assertion is without merit.

(3) Determination as to the assertion that assets, etc. have not been acquired and that the amount of additional collection is excessive

In the crime of taking property in breach of trust, necessary confiscation or collection is the same as the defendant asserts that the purpose is to deprive those who violated Article 357(1) of the Criminal Act of money, valuables and other property gains provided to them and prevent them from possessing unjust profits (see Supreme Court Decision 2004Do482 delivered on April 27, 2004).

In addition, even if the property or property interest acquired by the inquiree is used for the benefit of the inquiree, if it is not delivered to another person according to the purport that it was scheduled from the beginning, but it was used for the use of the property within the independent authority of the inquiree, the entire amount received by the inquiree shall be additionally collected (see Supreme Court Decision 9Do1900 delivered on June 25, 199, etc.). In a case where money and valuables received by the inquiree or other property interest is consumed, it is not required to be used for the personal interest of the inquiree as a requirement for collection from the inquiree.

As to the instant case, as long as the Defendant received money in the name of experiment expenses in return for an illegal solicitation from the degree holder, it is the property acquired due to the crime of breach of trust. Even if the Defendant actually used the money in the experiment expenses, since it constitutes a case where the Defendant used the money in the discretion of the Defendant, who is the recipient of the research, it is not subject to additional collection as seen above (as long as the Defendant performed the experiment to be used as the main part of the dissertation, received the money in return for analysis and reorganization of the result by proxy and received the money in return for the research of the Defendant laboratory, it cannot be said that the Defendant did not acquire the money that the Defendant received). This part of the Defendant’s assertion is without merit.

However, while the first instance court is the amount of 378,00,000 won, it is clear that it is a clerical error in the amount of 378,700,000 won and therefore, it shall be determined by the amount of additional collection.

B. Determination on the assertion of unreasonable sentencing by the defendant and prosecutor

The crime of this case is committed on behalf of a person who is not entitled to receive a degree by receiving a large amount of money and having another person receive a degree on behalf of another person who is not entitled to receive a degree, and the nature and circumstances of the crime are very heavy. The crime of this case is committed by a graduate student who has acquired a tin and a doctor's degree using the test results on behalf of the defendant, with a very large amount of money of 378,700,000,000 won for four years. Thus, it is necessary to strictly punish one mother.

However, the defendant's argument is reasonable, and the prosecutor's assertion is without merit, since the defendant's imprisonment of two years with prison labor sentenced by the first instance court is too heavy, considering the following facts: (a) the defendant did not have any criminal power before the instant case; (b) he was appointed as a professor; and (c) the defendant won the reputation internationally as an editing member of the overseas well-known academic journal, etc.; (d) most of the money the defendant received from the degree holder is deemed to have been paid as personnel expenses for the support of living expenses of the experimental researchers in the experimental room working in vulnerable situations; and (e) the defendant reflects his mistake in depth; and (e) the defendant is deemed to have been too heavy in the sentence of two-year imprisonment with prison labor sentenced by the first instance court; and (e) the defendant's argument is without merit.

3. Conclusion

Therefore, the judgment of the first instance court is reversed, and it is again decided as follows after pleading.

Articles 357(1), 33, and 30 of the Criminal Act (Determination of Imprisonment, respectively)

2. Aggravation of concurrent crimes;

The punishment provided for in the former part of Article 37, Article 38(1)2, and Article 50 of the Criminal Act (the severe penalty, and the punishment provided for in the crime of taking property in breach of trust, which was received nine million won from Nonindicted 12 on December 11, 2003)

3. Inclusion of days of pre-trial detention;

Article 57 of the Criminal Act

4. Suspension of execution;

Article 62 (1) of the Criminal Act (see Grounds for Destruction)

5. Additional collection:

Article 357(3) of the Criminal Act

[Attachment Form 5]

Judges Han Jin-hun (Presiding Judge)