[1] The meaning of and criteria for determining “illegal solicitation” in the crime of accepting and giving evidence in breach of trust, and the method of solicitation / In a case where the nature of money and valuables provided to a person in charge of another’s business is indivisiblely combined with the nature of the money and valuables as consideration for illegal solicitation and other acts, whether the entire money and valuables have the nature of the consideration for illegal solicitation (affirmative)

[2] Requirements for the establishment of a joint principal / Whether a joint principal / Whether a competitive relationship is recognized even if the joint principal / a joint principal / joint principal / joint principal / joint principal / joint principal / joint misappropriation with the method of offering property

[3] Where a person who administers another person's business obtains property or property benefits from another person other than him/her in exchange for an illegal solicitation as to his/her duties, a crime of taking property in breach of trust can be established

[1] Article 357 (1) and (2) of the Criminal Act / [2] Articles 30 and 357 (2) of the Criminal Act / [3] Article 357 (1) of the Criminal Act

[1] Supreme Court Decision 2003Do4320 Decided May 11, 2006 (Gong2006Sang, 1079), Supreme Court Decision 2010Do15989 Decided February 24, 2011, Supreme Court Decision 2012Do535 Decided May 24, 2012 (Gong2012Ha, 1178) / [2] Supreme Court Decision 2010Do354 Decided July 15, 2010 (Gong2010Ha, 1613), Supreme Court Decision 2013Do5080 Decided August 23, 2013 / [3] Supreme Court Decision 2008Do13219 Decided March 12, 209; Supreme Court Decision 2015Do6519 Decided March 24, 2019

Defendant 1 and two others

Defendants

Attorneys Han Han-chul et al.

Seoul High Court Decision 2012No2933, 2013No177 decided February 4, 2015

All appeals are dismissed.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. As to Defendant 1’s taking of property in breach of trust and the giving of property in breach of trust by Defendants 2 and 3

A. As to Defendant 2’s assertion on the principle of improper solicitation and non-acceptance

(1) In the crime of breach of trust and inheritance, “illegal solicitation” does not necessarily require that it constitutes the substance of occupational breach of trust, and it would suffice that it violates social rules or the principle of good faith. Determination as to whether an “illegal solicitation” constitutes “illegal solicitation” ought to comprehensively consider the contents of solicitation, the amount of consideration related thereto, the form, and the integrity of transactions, which are the legal interests protected by the law, and the solicitation does not necessarily have to be explicitly and implicitly made. Moreover, in a case where the nature of money and valuables provided to a person who administers another’s business is indivisiblely combined with the nature of the consideration for unlawful solicitation and the other acts as a case concerning the other acts, such solicitation ought to be deemed as having the nature of the consideration for unlawful solicitation (see, e.g., Supreme Court Decision 2012Do535, May 24, 2012).

Meanwhile, the court may, within the scope consistent with the facts charged, recognize facts constituting a crime different from the facts charged as stated in the indictment ex officio, even if the indictment has not been modified, when it is deemed that there is no concern that a substantial disadvantage may be inflicted to the defendant’s exercise of his/her right to defense in light of the progress of the trial within the extent consistent with the facts charged (see Supreme Court Decision 200Do4419, Nov. 2

In addition, criminal facts should be proved to the extent that there is no reasonable doubt (Article 307(2) of the Criminal Procedure Act). However, the preparation of evidence and the probative value of evidence conducted on the premise of fact finding belong to the free judgment of the fact-finding court (Article 308 of the Criminal Procedure Act).

(2) Based on its stated reasoning, the lower court acknowledged that Defendant 2’s solicitation was necessary to make an illegal solicitation to Defendant 1, a secretary general of the player conference, in order to obtain the right to use the portrait right from the player conference, on the grounds that Defendant 2 appears to have obtained the right to use the portrait right, including the conclusion of a contract to use the portrait right, the smooth maintenance of the contract, and the renewal after the termination of the contract, and the right to use the portrait right to use the portrait right. Based on its stated reasoning, the lower court rejected Defendant 2’s appeal on the mistake of facts and misapprehension of legal principles against the necessity of solicitation.

(3) The allegation in the grounds of appeal, which is erroneous in the judgment of the court below, is the purport of disputing the above fact-finding of the court below. It is nothing more than an error in the judgment of the court below which is the free judgment of the fact-finding court, and the above solicitation cannot be deemed as an act to secure Defendant 2’s existing rights. Thus, examining these circumstances and the reasoning of the court below in light of the above legal principles and the evidence duly adopted and the records, the judgment of the court below is erroneous, contrary to what is alleged in the grounds of appeal, by misapprehending the legal principles as to the illegal solicitation of the crime of giving property in breach of trust, exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, by failing to exhaust all necessary deliberations, or by failing to exhaust all necessary deliberations, by making a judgment beyond the identity of the facts charged, thereby violating the principle of no appeal, infringing upon

The Supreme Court precedents cited in the grounds of appeal are different from the instant case, and thus are inappropriate to be invoked in the instant case.

B. As to the assertion that Defendant 2’s conspiracy cannot be acknowledged

(1) The co-principal under Article 30 of the Criminal Act is established by satisfying the subjective and objective requirements, which are the conduct of a crime through the process of co-processing and the functional control by the co-principal. As such, even if a person who did not directly share and implement the elements of a crime among the competitors satisfies the above requirements, he/she is liable for a crime as a co-principal if he/she satisfies the above requirements. Therefore, even though the co-principal of a crime of breach of trust is unaware of the method in which the co-principal of a crime of conspiracy of property in breach of trust provided property or property benefits to the receiver by another co-principal, the relationship of conspiracy cannot be denied (see Supreme Court Decisions 2010Do3544, Jul. 15, 2010; 2013Do5080, Aug. 23, 2013).

(2) For the reasons indicated in its reasoning, the lower court, on the grounds as indicated in its reasoning, cannot be deemed to have provided funds to Nonindicted Co. 1 (hereinafter “Nonindicted Co. 1”) by deceiving Defendant 3, and it cannot be deemed that Defendant 3 took part in Defendant 3’s criminal act of giving necessary funds to Defendant 3, recognizing the fact that Defendant 2 would use funds to acquire the right to use the portrait right of the players belonging to the players cooperative, and providing necessary funds to Defendant 1; and (3) inasmuch as Defendant 2 provided Nonindicted Co. 1’s funds to Defendant 1 with the awareness that Defendant 2 would make funds to Defendant 1, it cannot be deemed that Defendant 3 was exempted from liability as a joint principal offender for the crime of breach of trust even if Defendant 2 used the funds to use funds for Nonindicted Co. 2, other than Nonindicted Co. 1’s funds, by withdrawing money from the account mixed with the funds of Nonindicted Co. 1 and giving money to Defendant 2.

(3) The allegation in the grounds of appeal, which is erroneous in the judgment of the court below, is purporting to dispute the above fact-finding of the court below. It is nothing more than an error in the determination of evidence selection and probative value which belong to the free judgment of the court of fact-finding. In addition, even after examining the reasoning of the judgment below in light of the above legal principles and the aforementioned legal principles and the evidence duly admitted, the judgment of the court below did not err in the misapprehension of the legal principles as to the conspiracy of crime of embezzlement, contrary to what is alleged in the grounds of appeal,

C. As to Defendant 1 and Defendant 2’s assertion on the individual act of giving or taking advantage of trust

(1) The parts in Appendix 2 to 6, 9, 11, and 12 attached to the judgment of the court below

On the grounds indicated in its reasoning, the lower court determined that each of the above amounts was the money received by Defendant 1 in collusion with Defendant 2 and Defendant 3 in return for an illegal solicitation, and that it was the money received by Defendant 1 in return for such illegal solicitation, and rejected the grounds for appeal on mistake of facts and misapprehension of the legal doctrine disputing such solicitation

The allegation in the grounds of appeal, which is erroneous in the determination of the lower court, is purporting to dispute the fact-finding of the lower court. It is nothing more than an error of the lower court’s determination on the selection and probative value of evidence belonging to the free judgment of the fact-finding court. In addition, even if examining the reasoning of the lower judgment in light of the aforementioned legal doctrine and the evidence duly admitted, the lower court did not err by misapprehending the legal doctrine on taking advantage of breach of trust and evidence in breach of trust, contrary to what is alleged in the grounds

(2) The part as indicated in Appendix 41, 42, 49, 55, 75, and 85 of the judgment of the court below

Even if a person who deals with another person's business has received an unlawful solicitation in connection with his/her duties, where the person, other than himself/herself, has other persons acquire property or property benefits, the crime of taking property or property in breach of trust under Article 357 (1) of the Criminal Act shall not be established: Provided, That where the other person has a relationship that can be assessed equally with the person who received an unlawful solicitation in light of social norms, such as where the other person received property or property benefits, or where the other person acquired property or property benefits as a private person or representative of the person who received an unlawful solicitation, or where the other person was responsible for the living expenses, etc. of the other person, or where the person who received an unlawful solicitation bears an obligation against the other person, such a crime may be established (see Supreme Court Decision 2008Do1321, Mar. 12, 2009, etc.).

For the reasons indicated in its holding, the lower court determined that Defendant 1’s direct receipt of the above money was the same as Defendant 1’s receipt of the above money, and that Defendant 2 and Defendant 3 offered each of the above money in collusion with Defendant 1, on the ground that Defendant 1 was practically a company established and operated by Defendant 1, and Defendant 1 had Defendant 3 bear the expenses for the establishment of Nonindicted Company 3, the expenses for the purchase of vehicles used by Nonindicted Company 4, and the expenses for the management of the company’s officers and employees, etc. to be borne by him, and thus, Defendant 1 was exempted from paying the above money. In so doing, the lower court did not accept the grounds for appeal on mistake of facts and misapprehension of the legal doctrine

The allegation in the grounds of appeal, which is erroneous in the judgment of the court below, is purporting to dispute the above fact-finding of the court below. It is nothing more than an error of the judgment of the court below on the selection and probative value of evidence belonging to the free judgment of the court of fact-finding. In addition, even if examining the reasoning of the judgment below in light of the aforementioned legal principles and the evidence duly admitted, the court below did not err in the misapprehension of the legal principles as to the establishment of property in breach of trust, third party profit and the calculation of the amount of property in breach of trust, and the intentional act, etc., and contrary to logical and empirical rules

2. As to Defendant 1’s violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Embezzlement and Breach of Trust) and occupational embezzlement

For the reasons indicated in its reasoning, the lower court rejected the grounds of appeal on the following grounds: (a) Defendant 1 embezzled KRW 99,90,000 of the Deposit Claim 99,90,000, which was owned by the player group as a security for his personal loan; (b) Defendant 1 concluded an integrated marketing agreement with Nonindicted Company 3 on September 30, 2010 and paid KRW 510,000 to Nonindicted Company 3 at his own discretion as a consulting fee; and (c) Defendant 1 embezzled the funds of KRW 9,560,000 using Nonindicted Company 4 and Nonindicted 5’s account with the intent of unlawful acquisition; and (d) Defendant 1 embezzled the funds of KRW 40,152,00 with the intent of unlawful acquisition; and (c) Defendant 1 arbitrarily disposed of the funds of KRW 50,000 for private use as a subsidy to △△△△△; and (c) based on this, rejected the grounds of appeal on mistake of facts and misapprehension of legal principles.

The allegation in the grounds of appeal, which is erroneous in the judgment of the court below, is purporting to dispute the above fact-finding of the court below. It is nothing more than erroneous in the judgment of the court below on the selection and probative value of evidence belonging to the free judgment of the court of fact-finding. In addition, examining the reasoning of the judgment below in light of the above legal principles and the relevant legal principles at the time of original trial and the evidence duly admitted, the judgment of the court below did not err in the misapprehension of legal principles as to the unlawful acquisition intent of embezzlement and acquisition, and breach of duty

3. As to Defendant 3’s ground of appeal

According to Article 383 subparag. 4 of the Criminal Procedure Act, only in cases where death penalty, life imprisonment, or imprisonment with or without prison labor for not less than ten years has been imposed, an appeal on the grounds of unfair sentencing shall be allowed. Accordingly, in this case where Defendant 3 was sentenced to a more minor punishment, Defendant 3’s assertion to the effect that the determination of punishment by the court below is unfair on the grounds of various circumstances regarding the conditions of sentencing or equity with Defendant 2 is not a legitimate ground for appeal.

4. Conclusion

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

Justices Kim So-young (Presiding Justice)