[2] Other party to mediation (=public official in charge of affairs subject to mediation) under Article 3 of the Act on the Aggravated Punishment, etc. of Specific Crimes

[3] The case holding that the business related to the business of an incorporated foundation established under the Civil Act, which was fully contributed by a local government, cannot be deemed as a public official

1. As to Defendant 1’s ground of appeal

A. Examining the evidence adopted by the court below in light of the records, the court below is just in holding that Defendant 1 was in the position of being entrusted with a separate event from the Ycheon-gun Office as a person who actually operates the (title omitted) Ycheon-gu Office and was in the position of retaining the subsidy granted as expenses for the exercise, and that the subsidy not used to be paid to his wife constitutes embezzlement, and there is no error of law such as misunderstanding of facts against the rules of evidence or misunderstanding of legal principles as to the intention of embezzlement or intent of unlawful acquisition, as otherwise alleged in the ground of appeal.

B. Since the money entrusted with the purpose and purpose is reserved to the truster until it is used for a specified purpose and purpose (see Supreme Court Decision 2000Do5062, Apr. 27, 2001), the crime of embezzlement is established if it is executed by others upon being entrusted with a strictly limited fund and is used for any purpose other than the limited purpose (see Supreme Court Decisions 2002Do366, Aug. 23, 2002; 2003Do6988, May 27, 2004, etc.).

The court below is just in holding that Defendant 1's ownership of the exercise expenses received in the form of a subsidy is reserved to the Ycheon-gun Office, the truster, and there is no error of law such as misunderstanding of legal principles.

2. As to the Prosecutor’s Grounds of Appeal

A. The court below affirmed the judgment of the court of first instance that acquitted Defendant 1 and 2 of the facts charged in the instant case on the ground that there is no proof of criminal facts as to the forgery and exercise of the receipts in the name of Defendant 1 and Nonindicted 2, and the forgery and exercise of the receipts in the name of Defendant 1 and Nonindicted 1 and 2, and therefore, it is just in light of the records, and there is no error of law such as misconception of facts against the rules of evidence.

B. Article 3 of the Act on the Aggravated Punishment, etc. of Specific Crimes provides and receives money and other valuables or benefits to the public official as to the good offices of matters belonging to the duties of the public official. The phrase "means the case where money and other valuables or benefits are provided and received under the pretext of the good offices between the person who requested the good offices and the public official (the other party to the good offices) who is eligible to become the other party to the good offices (see, e.g., Supreme Court Decisions 2004Do5655, Nov. 12, 2004; 2005Do3045, Aug. 19, 2005). The other party to the good offices here is a public official in charge of all or part of the affairs subject to the good offices

The court below held that the Korea Institute of Korean Studies, a foundation, made full contributions to the Gyeongbuk-do, but the business related to the mixed restoration project promoted by the said Institute as a non-profit corporation established under the Civil Act, cannot be deemed as a public official's official's duty, and therefore, even if Defendant 1 recommended Defendant 2 as a mixed manufacturer, it cannot be deemed as an arrangement about the public official's duty, since it is not a public official, its duty does not constitute a public official's duty, and there is no error in the misapprehension of legal principles as alleged.

3. Conclusion

Therefore, all appeals are dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Yang Sung-tae (Presiding Justice)