2012Do14796 Acceptance of Misappropriation

A person shall be appointed.

Defendant and Prosecutor

Attorney B, C, D, E

Attorney F

Attorney G.

Seoul High Court Decision 2012No2056 Decided November 8, 2012

April 26, 2013

The guilty portion of the judgment below is reversed, and that part of the case is remanded to the Seoul High Court.

The prosecutor's appeal is dismissed.

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

1. As to the Defendant’s ground of appeal

A. The crime of taking property in breach of trust under Article 357(1) of the Criminal Act is established when a person who administers another person's business acquires property or pecuniary benefits in return for an illegal solicitation in connection with his/her duties. The issue of whether the crime constitutes "illegal solicitation" is determined by comprehensively taking into account the details of the solicitation, the amount and form of the benefits received, the integrity of transactions, which are protected legal interests, etc. (see Supreme Court Decision 2008Do6987, Dec. 11, 2008, etc.).

Meanwhile, the facts constituting the elements of a crime prosecuted in a criminal trial, whether it is subjective or objective, are the prosecutor’s burden of proof (see, e.g., Supreme Court Decision 2009Do12132, Nov. 25, 2010); and the recognition of facts constituting a crime, can be reasonably doubtful by a judge.

Inasmuch as there is no room for doubt as to whether the prosecutor has probative value, which leads to conviction, should be based on strict evidence. Thus, in a case where the prosecutor’s proof does not sufficiently reach the extent that such conviction would lead to such conviction, even if the defendant’s assertion or defense is inconsistent or unreasonable, the interest of the defendant should be determined (see, e.g., Supreme Court Decision 2010Do1487, Apr. 28, 201).

Therefore, in the crime of taking property in breach of trust, the “illegal solicitation” should be recognized through strict evidence. Therefore, in the event that the acquisitor contests the contents of the illegal solicitation made by the donor and expresses other names in connection with the receipt of money and valuables, the credibility of the donor’s statement should not be immediately acknowledged solely on the ground that the purchaser’s statement was not reliable, and the credibility of the donor’s statement in objective circumstances at the time of the grant should be carefully examined.

B. The summary of this case’s giving and receiving of 300 million won is that the defendant, the representative director of H (hereinafter “H”) of H (hereinafter “H”) did not make a proper decision as to whether the defendant has to make a continuous investment in the company I (hereinafter “the company”) and did not take appropriate measures to recover the claim. On July 2008, the defendant continued to make an investment in the company and received an illegal solicitation from the JJ, who had been in charge of marketing directors of the company and vice-presidents while working for the company, who had been in charge of attracting the fund, but did not request the collection of the claim against the company. The defendant received a bank including KRW 30 million in cash from August 2008, which included KRW 30 million in the amount of money. Accordingly, the defendant at the time of August 2008, 200 to the effect that there was an unlawful solicitation that there was a collection of money under the name of “the aforementioned 208 stocks payment.”

In this regard, after compiling the adopted evidence, the lower court acknowledged the facts as indicated in its reasoning, and acknowledged the facts as indicated in its reasoning, and found that the Defendant’s statement “as a result of the recovery of stock investments” was not reliable, and that at the time H company decided to continue to make an investment in the company, and that was from the Haman on December 2006 to December 208.

In light of the fact that the amount of royalties, etc. to be paid by the H company to the Haman up to 10.4 billion won was paid only by the time and approximately KRW 2.0 billion, the court affirmed the judgment of the first instance which found the Defendant guilty of this part of the facts charged on the ground that the statement of the J to the purport that the Defendant was credibility, which stated that 'the Defendant requested the Defendant to not take measures to continue to pay the investments and to recover claims against the I company.'

C. However, the lower court’s determination is difficult to accept in light of the following circumstances recognized by the aforementioned legal doctrine and the record.

(1) In relation to the motive for an illegal solicitation, J stated that “A defendant was economically bullying to himself or herself on or around June 7, 2007,” and it is difficult for J to pay money to H companies at the time.

On August 2008, K, the representative director of the I company, stated to the effect that "K would like to take up even the defendant's bridge," and that "the way of involvement in the operation of the I company would give cash," which means "the way of cash would give the H company's credit recovery to H company, and would have extended the collection of claims against H company and received the continued payment of investments under the existing contract."

On the other hand, K stated to the effect that “No such speech was made to J, and one company may impose sufficient money on the H company due to its games developed by the H company due to heavy gambling, and thus, it is difficult for K to pay for the H company.” L stated to the effect that “A was unaware of the fact that J paid the above money to the Defendant,” and L was not involved in the operation of the company since L was released from the office of the representative director of the I company on April 2008, and was not involved in the operation of the company.”

(2) According to the reasoning of the lower judgment and the record, the Defendant entered into a contract to invest in the company for the development of online games using the cartoon character “N”, etc., which was held by H company at the time when it was a representative director K and vice president of one company around February 2, 2007. Since April 2007, H company was developed by one company, from around April 2007 to 2009.

3. The fact that the 200 billion won and the 200 billion won and the 1 billion won and the 3.5 billion won and the 3.5 billion won and the 205 billion won and the 2000 billion won and the 2000 billion won and the 3.5 billion won and the 2000 billion won and the 3.5 billion won and the 2000 billion won and the 3.00 billion won and the 208 billion won and the 2000 billion won and the 2000 billion won and the 2000 billion won and the 800 billion won and the 2000 billion won and the 2000 billion won and the 2000 billion won and the 2000 billion won and the 8000 billion won and the 20000 billion won and the 208 won and the 800 billion won and the 2000 billion won and the 2008 won and the 10000000 billion won and more of the 1000.

(3) Such factual relations are more likely to be deemed to conform to the statement of K or L rather than the statement of J. In light of the circumstances, the statement of J to the purport that the grant of KRW 300 million to the Defendant was made in accordance with the direction of K during August 2008 by the officer of the company was difficult to recognize its credibility, and therefore, the grant of money and valuables to the Defendant by J without knowing that it was the representative director of the company. As such, it is difficult to eliminate reasonable doubts as to whether such grant of money and valuables was related to the continuation of investment in the company or the collection of claims.

In addition, in light of these facts, it is difficult to eliminate reasonable doubt as to whether the objective circumstances at the time of providing KRW 300 million to the defendant discussed or examined the implementation of measures to recover claims or the suspension of investment in the H company against one company in the side of the H company, and accordingly, whether the company could have induced the defendant to stop the payment of the amount of KRW 300 million to the defendant.

(4) If so, the lower court should have determined whether the credibility of the J’s statement that “M” game was made according to the direction of K in light of the objective circumstances at the time of the commercialization, namely, the degree of expected profit at the time of the commercialization, the degree of development was developed, the degree of prediction profit was predicted in light of the promotion of the M’M game, and whether there was a certain degree of examination as to the implementation of the measure to recover claims or the suspension of investment against one company in the side of the H company, whether the I company knew or could have known of such fact, and whether there was no involvement in the management of the S company and T company’s account, conducted through X and U, and in light of the objective circumstances at the time of the review, the lower court should have determined whether the credibility of the J’s statement that “an illegal solicitation was made and the grant of KRW 300 million was made.”

D. Nevertheless, the lower court acknowledged the credibility of the J’s statement that the Defendant received KRW 300 million in return for an illegal solicitation and found the Defendant guilty of this part of the facts charged. In so doing, the lower court erred by misapprehending the legal doctrine on the degree of proof of illegal solicitation or by failing to exhaust all necessary deliberations, thereby adversely affecting the conclusion of the judgment. The allegation in the grounds of appeal assigning this error is with merit.

2. As to the Prosecutor’s Grounds of Appeal

Examining the reasoning of the judgment below in light of the records, the court below is just in finding the Defendant not guilty of this part of the facts charged on the ground that the Defendant received an illegal solicitation from a policeman on March 2009 among the facts charged in this case, and there is no illegality in violation of the law of logic and experience and free evaluation of evidence, as otherwise alleged in the ground of appeal.

3. Conclusion

Therefore, without further proceeding to decide on the remaining grounds of appeal by the defendant, the part of the judgment below's conviction is reversed, and this part of the case is remanded to the court below for further proceedings consistent with this Opinion. The prosecutor's appeal is dismissed. It is so decided as per Disposition by the assent

Justices Yang Chang-soo

[Attachment-dae]

Justices Ko Young-han

Justices Kim Chang-suk