(State) 2014No117 A. Misappropriation

(b) Violation of the Act on the Regulation and Punishment of Criminal Proceeds Concealment;

(c) Property in breach of trust;

A. 1. Ga. 1. Na. ○○ (1956) and ○○ Private Teaching Institutes

2. (a) ProfessorO, or self-business;

3.O or construction business;

4. DialO, construction business;

5. (c) Seo-○○ (Seoul 1954) and real estate development business;

Both parties to a lawsuit

Plaman Scar (prosecutions) and Kim Jong-Un (Public Trial)

Attorney Kang Jae-won, a defense counsel (for Defendant 00○○)

Attorneys Park Sung-hoon et al., Counsel for the plaintiff-appellee

Law Firm KEL, Attorneys Ansan-young (for the purpose of Defendant Seo-○, Counsel for the defendant)

Jeju District Court Decision 2014Gohap56, 162 (Consolidation) decided October 13, 2014

March 25, 2015

Of the judgment of the court below, the part on Defendant 00, ○○, ○○, and △△△ is reversed.

Defendant 00 ○○ is punished by imprisonment with prison labor for 4 years and by imprisonment for 5 months, and by imprisonment for 2-A-2 and 2-2 of the judgment, for the crime as set forth in the judgment below, 00 ○○ is punished by imprisonment with prison labor for 1 year, and by imprisonment with prison labor for 10 months, for 10 months.

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

680,000,000 won from Defendant ○○○, and 870,000,000 won from Defendant’s door-○○ shall be collected respectively.

Defendant 00 and door ○○ are ordered to pay an amount equivalent to each of the above additional charges.

All appeals against Defendant ○○○ and the Prosecutor’s Defendant are dismissed.

1. Summary of grounds for appeal;

A. Defendant 1’s 00, 100, 100, 200, 2000, 2000, or 300,000, or 300,000,000 won

The prior contract of this case in the holding of the court below is merely a transaction of the school site of this case on condition that ○○ Private Teaching Institutes shall obtain approval from the board of directors and permission from the competent authorities, and it is merely a provisional contract, and it does not constitute an illegal solicitation even if the defendant received KRW 100 million as the down payment

Although the defendant arranged 1.9 billion won in total from the best mutual savings bank, it is irrelevant to the sale and purchase of the school site of this case, so it cannot be viewed as the consideration for illegal solicitation.

around December 23, 2008, KRW 200,00, which was delivered by the Defendant’s door-○○ on or around December 23, 2008, did not receive as a consideration for an illegal solicitation, but did not receive the said amount in a lump sum.

B) In the absence of a resolution of the board of directors or permission from the competent authorities that is not a person to handle another person’s business, the sales contract to dispose of the school site of this case is null and void, and the Defendant is not the representative of ○○ Driving Schools, but rather the person who administers another person’s business.

C) Absence of public offering

According to the instant sales contract, the sales price of the instant school site is KRW 2.4 billion and the down payment is KRW 3.5 billion, stating that the down payment is the down payment of KRW 3.5 billion already paid to the Defendant, but it was written differently against the Defendant’s will that the down payment of KRW 3.5 billion already paid is included in the down payment of the instant sales contract. The Defendant’s door ○○ received from ○○ Development after the conclusion of the instant sales contract is a transaction between the Defendant’s door ○○ and ○○ Development, and there is no relation with the Defendant. As such, the Defendant did not arrange for the receipt of KRW 7.5 billion with the Defendant’s door ○○ and the said KRW 7.5 billion.

D) The absence of the intention of the most of criminal proceeds

The defendant did not have any intention to disguise the acquisition of criminal proceeds, etc.

In accordance with Article 312(4) of the Criminal Procedure Act, it is unreasonable for the court below to recognize admissibility of evidence of the protocol prepared by the co-defendant 00 and the prosecutor's protocol prepared by the co-defendant 00 and the defendant's co-defendant 1, who are co-defendant 2, without examining the requirements, in accordance with Article 312(4).

B) Defendant 00, who is not a person in charge of another’s business, was only a director of ○○ Driving Schools at the time of entering into the instant prior contract and sales contract, and the appointment of the president was not confirmed in the future. Thus, Defendant 00 did not have the status of disposing of real estate, which is an fundamental property for education owned by ○○ Driving Schools.

C) The absence of unlawful solicitation and payment and the unjust collection amount

The Defendant cannot be deemed to have made an illegal solicitation in light of the status, motive, and background of the party who entered into the instant prior contract and the instant sales contract, the form and content of the contract, the method of giving and receiving money, and the credibility of the statement by the relevant persons.

The sum of KRW 500 million that the Defendant received from ○○○ on June 10, 201 and on the 13th of the same month was donated to ○○ Private Teaching Institute by using the above building as the successful bid price, etc. necessary for the successful bid of the building, and the KRW 100 million that was received on February 22, 2012 used as the operating fund of entertainment bars operated by the Defendant, and thus, the sum of KRW 600 million cannot be deemed as the sum of the above money, and the said KRW 600 million is not subject to additional collection.

D) Non-existence of a public offering on taking property in breach of trust between the Defendant and Defendant 00

The Defendant only introduced Defendant ○○ through the Defendant’s door, and did not explicitly or explicitly consult with Defendant 00 on the distribution of the property acquired through the crime of taking property in breach of trust. Rather, the Defendant can be deemed as the victim of the fraud committed by Defendant 00.

E) The absence of the most intentional intent of criminal proceeds

There is no room to establish criminal proceeds on the premise that the defendant acquired criminal proceeds by taking advantage of the crime in breach of trust, and there was no intention to disguise the acquisition of criminal proceeds. 3) The defendant's wrong solicitation and the absence of such consideration.

The Defendant’s agreement with Defendant 00, etc. simply sells the instant school site, as well as simply constructing a new building to be transferred by ○○○○ Construction to another place and transferring ○○○ Building to a new building, the Defendant removed the present school building on the ground of the instant school site and constructing an apartment building from that place. Therefore, the Defendant’s agreement that ○○ Private Teaching Institute sells the instant school site to ○○ Construction, not merely sells it to ○○○○ Construction, but merely transfers it to a new building. Therefore, it is apparent that the contents of such solicitation are to purchase and use basic property for purposes other than the purpose of establishing ○ Private Teaching Institute, and thus, it cannot be deemed an illegal solicitation.

The amount of KRW 500 million that the Defendant shall pay to Defendant 00 million is paid as the down payment of the instant sales contract, and KRW 700 million paid to Defendant 1’s door ○○ is paid as the business right acquisition price, and the total sum of KRW 1.2 billion is not paid as the rebates.

In particular, prior to the conclusion of the instant sales contract, the Defendant delivered the instant sales contract to the Defendant’s door ○○.

23. A total of KRW 30 million, KRW 30,400,000,000 and KRW 700,000,000 were not prosecuted. As can be seen, if a total of KRW 1,40,000,00,00 paid by the Defendant to the Defendant’s door-○ does not constitute property in breach of trust prior to the preparation of a sales contract, the amount of KRW 700,00,00,000,00,000,000,000,000

B) Since Defendant 00 million won was not known that there was no public contest between Defendant 1, 00 and 100 million won, Defendant 1 did not notify Defendant 1, 200 million won in total to Defendant 1,40 million won, Defendant 2 did not establish a public contest relationship between Defendant 1, 200 and 300, and Defendant 2 did not notify Defendant 1, 2000, and Defendant 2 did not constitute a public contest relationship between Defendant 1, 200 and 300,000 won in total to Defendant 1, 2

C) Non-existence of acquisition act

Of KRW 500 million delivered by the Defendant to Defendant 00 million, KRW 170 million was merely the amount demanded or promised by Defendant 00 million and did not actually pay the amount. KRW 700 million paid to Defendant 1,00,000,000,000, which was paid to Defendant 100, was used as the price for the successful bid of playbu Scenic Building on June 10, 201 and on June 13, 201 among the above KRW 700,000,000,000, which was used as the price for the successful bid of the said building, and the said building did not belong to Defendant 0,000,000,000,0000,000,000,000,0

4) Illegal solicitation and the absence of such consideration

As the Defendant purchased a school site under the premise that he takes lawful procedures to Defendant 00, and made it possible to develop real estate. The Defendant’s request was made, it cannot be said to be an illegal solicitation contrary to social rules or the principle of good faith.

Even if the contents of solicitation include the new construction work on the instant school site, the Defendant merely delivered such intent, and the scale of the school to be newly built has not been determined. Therefore, there is no content that the solicitation is specific.

Even if the name of the seller in the sales contract is Defendant 00, Defendant 00 can solve the relevant procedures such as a resolution of the board of directors or permission from the competent authorities, there was no intention to make an illegal solicitation, since it was concluded in the form of a provisional contract.

The Defendant paid KRW 500 million to Defendant 00 million and KRW 3 billion to Defendant 1,200,000,000 to Defendant 1, and paid the said money to Defendant 1,200,000,000 won when concluding a fixed-term contract. Therefore, from the perspective of the Defendant, it cannot be deemed that the said money was considered as a consideration for illegal solicitation. Moreover, if Defendant 00 and 1,000 won used money received for any purpose without undergoing the resolution procedure of the board of directors regarding the transfer of the school, the Defendant would rather be deemed as a victim of fraud.

Defendant 00, unlike the prosecutor’s office, failed to properly respond to the case cost in the court of the court below. Thus, Defendant 00 was unable to believe the statement, and Defendant 00 was stroke after stroke, and Defendant 1 made a statement to the effect that the prosecutor’s office was disadvantageous to her in the situation where all of the company’s books have been seized. As such, Defendant 00 made a statement to the effect that the prosecutor’s office’s office was disadvantageous to her

B) In the absence of a resolution of the board of directors related to the validity of the sales contract or permission from the competent authorities, even if the sales contract was concluded to dispose of the school site of this case, it cannot have any legal impact on the ○○ Private Teaching Institutes, and thus, there was no risk of causing losses, and later, it cannot be deemed that the money to be converted to the down payment is an illegal solicitation.

B. The defendants and the prosecutor's allegation of unfair sentencing

Defendants asserted that the sentence of the court below is too unreasonable because the sentence of the court below is too unreasonable, and the prosecutor asserts that it is too uneasible and unfair.

2. Determination ex officio (Non-performance of the renewal of the trial proceedings by the court below)

On July 21, 2014, the fourth trial date of the lower court, which was July 21, 2014, participated in the trial by the presiding judge Kim Yang-ho, judge Shin-ho, and complainants. Then, on August 21, 2014, the fifth trial date of the lower judgment, the presiding judge took part in the trial by the judge Kim Yang-ho, judge Kim Jong-ho, and complainants, without renewal of the trial procedure. On September 18, 2014, the sixth trial date of the lower court, the presiding judge Kimyang-ho, the judge Shin-ho, the Constitutional Court, and the complainants participated in the trial again by the judge without renewal of the trial procedure, and then closed the pleadings with respect to the above Defendants on October 13, 2014, the fact that the lower court rendered the judgment on September 13, 2014, which was clearly indicated in the record.

As such, the court below should have renewed the procedure of trial by re-informing the right to refuse to make statements under Article 144 of the Regulations on Criminal Procedure under Article 301 of the Criminal Procedure Act, since there is a warning of the right to refuse to make statements, the interrogation for recognition, the statement of the summary of indictment, the opportunity to make statements to the defendant, and the examination of evidence, etc., under Article 301 of the Rules on Criminal Procedure, the court below should be deemed to have not followed such procedure. As a result, the court below found the evidence examined in the trial before the judge is replaced as evidence of conviction of the facts charged in this case and sentenced the defendant 00, ○, ○, ○, and △△△, which affected the conclusion of the judgment. Accordingly, the court below erred in the misapprehension of laws and regulations, and in this regard, the part of the court below as to the above defendants cannot be maintained.

3. Judgment on misconception of facts or misapprehension of legal principles

Even in the case where there are the above reasons for ex officio reversal in the judgment below, Defendant 00, door ○, ○○, O, ○○, misunderstanding of facts, and misapprehension of legal principles still are subject to the judgment of this court, and this is examined below.

A. Defendant 00, 100, 200, 200, 200, 200, 200, 2000, 200, 2000, 2000, 2000, 2000, 2000, 2000, 2000, 200, 2000, 2000, 2000, 2000, 2000, 200, 2000, 200, 2000, 200, 200, 200, 200, 200, 200, 200, 200, 200, 200, 70,000, 20,000, 20,000,000,00,00,000,00).

B. As to the assertion on admissibility of the protocol of examination of the co-defendant prepared by the prosecutor as co-defendant (the defense counsel by Defendant 1-○)

According to the records, co-defendant 00, who is the co-defendant of the above defendants Ga○○○ and O○○, made a statement to the same effect as the contents of the prosecutor’s protocol prepared during the trial of the court below on the trial date of the court below and made it to the same effect as substitution of the contents of the prosecutor’s statement in the investigation agency, and at this time, the opportunity to cross-examine the co-defendant was guaranteed. Furthermore, the court below adopted it as evidence on the premise that there is little room for false entry in preparing the contents of the above defendants’ statement or protocol, and that the credibility or ariness of the contents of the statement is recognized. In light of all the circumstances indicated in the records such as the process of the above defendants’ statement at the prosecutor’s office, the above judgment of the court below is just and acceptable, and there is no error in the misapprehension of legal principles as to the admissibility of

C. As to the assertion that the crime of giving and receiving property in breach of trust is established only within the scope of each money and valuables acquired by Defendant 00 and door 00 respectively, the above argument is ultimately attributable to the judgment of the court below on the premise that Defendant 00 and door 00 did not constitute a co-principal, and that Defendant 00 and door 00 did not constitute a co-principal. As seen earlier, Defendant 00 and door 00 are recognized as a co-principal, and even if one co-principal did not actually acquire money and valuables, other co-principals acquired shall be included in the amount of giving and receiving property in principle (see Supreme Court Decision 2010Do387, Oct. 14, 2010).

Therefore, even if Defendant ○○ and Dol-gu offered around October 2010 to Defendant 0, Defendant 100 million won, among KRW 500,000,000,000,000,000 to Defendant 100,000 won, was not paid to Defendant 100,000,000 won, it does not affect the establishment of the crime of taking property in breach of trust or giving property in breach of trust. Defendant 1’s door,00 won, the sum of KRW 50,000,000,000,000,000 won, which was delivered on June 10, 201 and the 13th day of the same month, was the successful bid price necessary for taking place, and received from Defendant 10,000,000 won, which was received in return for an illegal solicitation. Thus, this part of this shall not be accepted, but shall be excluded from the amount of unlawful solicitation or from the additional collection charge.

D. In light of the following circumstances acknowledged by the evidence duly adopted and examined by the court below, i.e., Defendant 00 million won cashier’s checks issued in the No. 100 million won under the name of ○○○ and Do○○○○ constituted criminal proceeds as seen earlier with regard to the absence of the most intentional intent, Defendant 10 million won deposited in the No. ○○○’s account under the name of ○○○○ and Do○○○’s account, rather than Defendant 00, and Defendant 000 won cashier’s checks deposited in the account under the name of ○○○ and Do○○○’s account, and it is determined that Defendant 00 and Do○○ deposited money in the account under the name of another’s name and made the appearance of which criminal proceeds accrue to the account holder, it is sufficient to recognize that Defendant 000 and Do○○○ had the intent to disguise criminal proceeds. Accordingly, this part of the allegation also cannot be accepted.

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

The Defendant recognized the facts charged and against his mistake, and said that he would not repeat again. In addition, when the judgment of this case became final and conclusive, the Defendant may be sentenced to imprisonment with prison labor for up to three years for which the execution has been suspended.

However, the instant crime is a case where the Defendant, who is the chief director of the ○○ Institute, requested the Defendant to employ his children as a teacher and actively requested the Defendant to deliver a lot of money and valuables of KRW 50,000,000, and thus, the nature of the crime is not good. Accordingly, the Defendant significantly damaged the social expectation and trust in the fairness of the recruitment procedure of teachers. Furthermore, the Defendant again committed a crime of giving property in breach of trust without being sentenced to imprisonment for a crime of giving property in breach of trust, which is the same crime, even during the suspended execution period. Such circumstances are the summary of sentencing, which imposes heavy responsibility on the Defendant.

shall be a lawsuit.

Considering the above circumstances and the Defendant’s age, character and conduct, family relationship, environment, motive and progress of the crime, and circumstances after the crime, it cannot be deemed that the lower court’s punishment is too heavy or unreasonable.

Therefore, the defendant and prosecutor's argument of unfair sentencing cannot be accepted.

5. Conclusion

Therefore, since the part of the judgment of the court below regarding Defendant 00, ○○, ○○, and △△△△, among the parts of the judgment of the court below, there exist grounds for reversal of the above authority as to the above Defendants and the above Defendants, without examining each of the above Defendants’ and the prosecutor’s assertion of unfair sentencing, the part against the above Defendants among the judgment below is reversed, and the pleading is followed, and it is again decided as follows. The appeal by Defendant ○○ and the prosecutor on the part concerning Defendant ○○ among the judgment of the court below is without merit, and all of the appeals by

In other words, the summary of facts constituting an offense and evidence

The reasoning for this court’s explanation on Defendant 1, 200, 200, 200, 200, 2000, 2000, 200, 2000, 200,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,00,000,00,00

Application of Statutes

1. Article relevant to the facts constituting an offense and the selection of punishment;

A. Defendant 00: Article 357(1) of the Criminal Act / [Article 357(1) through (3) of the Criminal Act / [Article 357(1) of the Criminal Act / [Article 357(1) and (2) of the Criminal Act / [Article 357(1) of the Criminal Act / [Article 357(1) and 30 of the Criminal Act / [Article 3(1)1 of the Act on Regulation and Punishment of Criminal Proceeds Concealment / [Article 3(1) of the Criminal Proceeds Concealment /

B. Defendant literature ○○: Articles 357(1) and 30(a) of the Criminal Act (a comprehensive of the possession of property in breach of trust, referring to the possession of property in breach of trust), Article 3(1)1 of the Act on Regulation and Punishment of Criminal Proceeds Concealment (the most of criminal proceeds, etc.), and each choice of imprisonment

C. Defendant ○○ and Dolsan: Articles 357(2) and 357(1), and 30 of the Criminal Act (with regard to the charge of giving property in breach of trust, collectively, the choice of imprisonment)

1. Handling concurrent crimes;

Defendant Go-○: the latter part of Article 37 and Article 39(1) of the Criminal Act / [The previous conviction in the judgment and Article 2-b. 1 of the judgment]

1. Aggravation of concurrent crimes;

A. Defendant 00: the former part of Article 37, Article 38(1)2, and Article 50 of the Criminal Act

(b) Defendant literature ○○: The remaining crimes except for the crimes under the former part of Article 37, Articles 38(1)2 and 50(b) of the Criminal Act (Article 2-1(b)1 of the Judgment), and the crimes are concurrent crimes with the crimes of taking property in breach of trust, the nature of which is heavier)

1. Suspension of execution;

Defendant ○○ and △△: Article 62(1) of each Criminal Act

1. Collection;

Defendant 00 ○○ and Do○: The latter part of Article 357(3) of each Criminal Act

1. Order of provisional payment;

Defendant 000 and POO: Reasons for sentencing under Article 334(1) of the Criminal Procedure Act

1. Defendant 00

The Defendant abused the position of the general director of the ○○ Private Teaching Institute to pursue personal benefits, sold the instant school site, which is the basis for education, and received large amounts of money, thereby significantly harming integrity and fairness in handling the affairs of ○○ Private Teaching Institutes, as well as causing risks that the existence of the school may be endangered due to the insolvency of physical foundation for conducting educational projects.

In light of the factors of sentencing, it is inevitable to sentence the defendant to the punishment for the responsibility of the defendant, taking into account such factors as the defendant's liability.

However, in addition to minor fines, the defendant shall be considered as a favorable condition in which there is no specific criminal history, etc., other than the defendant's age, character, conduct, environment, family relationship, health status, motive and circumstance of the crime, means and consequence of the crime, etc., and the punishment as ordered shall be determined in consideration of all the sentencing conditions as shown in the arguments in the case.

2. Defendant’s door-○○

Defendant 00, 00,000,000 won, which led and led all of the procedures from the negotiation stage to the receipt of money and valuables between Defendant 1, 200 and the purchaser of the site of the instant school, was not responsible, thereby significantly impairing the integrity and fairness of the administrative affairs of the instant school juristic person and causing danger to the existence of the school.

In addition, the Defendant committed the instant crime during the trial of the instant case or during the period of suspended execution, even though he was convicted of breach of trust as before the judgment was rendered at the time of concluding the instant sales contract and receiving money and valuables, is also disadvantageous to the Defendant.

However, considering the facts that some of the crimes are concurrent crimes under the latter part of Article 37 of the Criminal Act, the punishment as ordered shall be determined in light of the defendant's age, character and conduct, environment, family relationship, health status, motive and circumstance of the crime, means and consequence of the crime, and all of the sentencing conditions as shown in the pleadings of the case, such as the circumstances after the crime.

3. The Defendant’s act of impairing the integrity and fairness of administrative affairs by providing a large amount of money and valuables to Defendant 00 million won in total to Defendant 1, a general director of the OO driving school, and Defendant 1’s door-○○ for the preference of Defendant 1’s business, etc. is disadvantageous to the Defendant.

However, the defendant is not actively recommended to sell the school site of this case or provided money and valuables to the defendant 00 and 100 in advance. The defendant suffered only property damage equivalent to the above increased amount without obtaining any particular benefits. The defendant appears to have an opportunity to repent his mistake while living under confinement in the court below due to the crime of this case, and the fact that the defendant has no particular criminal record other than the fine for traffic-related crimes and has contributed to the local society as a business person, etc. are the sentencing factors to be considered favorable to the defendant.

The punishment as ordered shall be determined in consideration of the above circumstances and the defendant's age, character and conduct, environment, family relationship, health status, motive and background of the crime, the means and consequence of the crime, and all of the sentencing conditions shown in the arguments in this case, such as the circumstances after the crime.

4. Defendant’s door;

The Defendant actively proposed the development project of the school site of this case to Defendant ○○, and himself was a party to the sales contract of this case and was involved in the sale of the school site of this case, so his responsibility is not less and less than that of the Defendant.

However, the fact that the Defendant entered into the instant sales contract with the proposal of Defendant 00 and Do○○, and that the Defendant seems to have no private profit, and that the Defendant has contributed to the development of local community as a business person, other than a long-term sentence of fine, is a favorable circumstance for the Defendant.

The punishment as ordered shall be determined in consideration of the above circumstances and the defendant's age, character and conduct, environment, family relationship, health status, motive and background of the crime, the means and consequence of the crime, and all of the sentencing conditions shown in the arguments in this case, such as the circumstances after the crime.

Judges Kim Jong-ho

Judges Jeon Young-soo

Judges So-young