[1] The case where the crime of taking property in breach of trust can be established when a person who received an illegal solicitation in relation to his/her duties obtains property or property benefits from another person

[2] The case holding that in case where the defendant, a representative director of a designated entity under the former Military Service Act, was transferred money to an account in the name of the designated entity in return for illegal solicitation that he had a person liable for military service transferred to a skilled industrial personnel belonging to the pertinent designated entity for special military service and had another company work for the pertinent designated entity, the crime of accepting

[3] In a case where a designated entity under the former Military Service Act does not intend to serve as an industrial technical personnel but applies for transfer or dispatch to a false content and obtained approval from the competent authority, whether the crime of obstruction of performance of official duties by fraudulent means is established (affirmative)

[1] Under the text of Article 357(1) of the Criminal Code which provides for the crime of taking property in breach of trust, where a person who administers another person's business receives an illegal solicitation with respect to his/her duties, and causes another person to acquire property or property benefits, it is clear that the above crime is not established: Provided, That in cases where a person who receives another person's property or property benefits from another person's business receives an illegal solicitation with respect to his/her duties, such as where the other person has a relation to the other person's receiving property or property benefits from another person's business by receiving property or property benefits from another person's business, or where the other person has a relation to the other person's receiving property or property benefits from another person's business, such as where the other person was aware of the person's receiving the illegal solicitation or his/her representative, or where he/she was responsible for the other person's debts, etc.

[2] In a case where the defendant, who is the representative director of the designated entity under the former Military Service Act (amended by Act No. 7186 of Mar. 11, 2004), was transferred money to an account in the name of the designated entity in return for illegal solicitation that the defendant, who is a person liable for military service, formally transferred the person liable for military service to the industrial technical personnel belonging to the pertinent designated entity and requested another company to work for the pertinent special military service, the case holding that since the defendant is the representative director of the pertinent designated entity and the principal shareholder of the pertinent designated entity, the above designated entity's receiving property

[3] In a case where a designated entity under the former Military Service Act (amended by Act No. 7186 of Mar. 11, 2004) did not intend to serve as a skilled industrial personnel but submitted an application for incorporation into the pertinent designated entity in collusion with the head of the pertinent designated entity and received approval of transfer from the competent authority by submitting a false application for incorporation into the industrial technical personnel service, and further requested dispatch from the competent authority by preparing and submitting false documents to avoid a fact-finding survey by the competent authority, approval, etc. of dispatch is not a cause of insufficient examination by the competent authority, but a fraudulent act by the applicant constitutes obstruction of performance of official duties by fraudulent means.

[1] Article 357 (1) of the Criminal Act / [2] Article 357 (1) of the Criminal Act / [3] Article 137 of the Criminal Act

[1] Supreme Court Decision 2004Do2581 Decided December 22, 2006 (Gong2007Sang, 245) Supreme Court Decision 2006Do3504 Decided March 27, 2008 (Gong2008Sang, 627) / [3] Supreme Court Decision 2008Do1011 Decided June 26, 2008 (Gong2008Ha, 1096)

Defendant 1 and one other

Defendants and Prosecutor

Law Firm, Kim & Lee LLC, Attorneys Jeon-tae et al.

Seoul Eastern District Court Decision 2007No1027 Decided January 17, 2008

The part of the lower judgment against Defendant 1 is reversed, and that part of the case is remanded to the Panel Division of the Seoul East District Court. The Defendant Company’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 ground of appeal on Defendant 1’s taking property in breach of trust

The crime of taking property or property in breach of trust under Article 357 (1) of the Criminal Act is established when a person who administers another person's business obtains property or property benefits in return for an illegal solicitation in connection with his/her business. Here, the crime of taking property or property in breach of trust refers to that which goes against social norms and the principle of good faith. Whether an illegal solicitation exists shall be determined after comprehensively considering the contents of the solicitation and the amount of the property received or provided in relation thereto, form, and integrity of the business manager, who is the legal interest protected (see Supreme Court Decision 2004Do6646, Jan. 14, 2005, etc.). Meanwhile, even if a person who administers another person's business, receives an illegal solicitation in relation to his/her business, it is obvious that the above crime is not established where a person acquires property or property benefits from another person, or where another person receives property or property benefits from another person as his/her agent, or where another person receives property or property benefits from the same 205 Supreme Court Decision 2008Do16284, supra.

The court below acknowledged the facts as stated in its reasoning based on the evidence duly admitted and adopted. The court below determined that Defendant 1, the representative director of Defendant Company, formally transferred Nonindicted Party 1 to the industrial technical personnel for military service belonging to the Defendant Company, and received 33,000,000 won from the Defendant Company’s account as a result of illegal solicitation to request the Nonindicted Party to work for the Defendant Company, and that Defendant 1 is also in a relationship between Defendant 1 and the major shareholder of the Defendant Company to acquire property or property gains directly. Thus, Defendant 1’s acquisition of property or property gains can be evaluated as having the same effect as Defendant 1 received property or property gains.

Examining the reasoning of the lower judgment in light of the aforementioned legal principles and records, we affirm the lower court’s fact-finding and judgment as justifiable.

As alleged in the ground of appeal, the court below did not err by violating the rules of evidence or by misapprehending the requirements for establishing a crime of taking property in breach of trust and the legal principles on the collection

2. As to the Defendants’ ground of appeal on the violation of the Military Service Act

The court below acknowledged the facts as stated in its reasoning based on the evidence duly examined and adopted by the defendant company's representative director, and acknowledged that the defendant 1, an employer of the person liable for military service, as the representative director of the defendant company, had the non-indicted 1, an industrial technical personnel belonging to the defendant company, work in the non-indicted company from December 23, 2004 to January 14, 2005, was not engaged in the field belonging to the designated company at the time of incorporation, and the defendants violated the Military Service Act by failing to

Examining the reasoning of the lower judgment in light of the relevant statutes and the records, we affirm the lower court’s fact-finding and judgment as justifiable.

As alleged in the ground of appeal, the court below did not err by violating the rules of evidence or by misapprehending the legal principles on the employer's duty to notify the personal information and duty to serve in the designated enterprise area.

3. As to the Prosecutor’s Grounds of Appeal

In granting authorization or permission in accordance with an application, an administrative agency shall examine and decide on whether to grant authorization or permission on the premise that the grounds for the application are inconsistent with the facts. Therefore, if an administrative agency approves or permits the applicant's belief that the grounds for the application for permission or false explanatory materials submitted by the applicant are light without sufficiently verifying the facts, this would result in insufficient examination by the administrative agency, and thus, it does not constitute a crime of obstruction of performance of official duties by fraudulent means. However, if the applicant asserts false grounds for the application to the administrative agency and submits false explanatory materials corresponding thereto to the administrative agency, the permitting agency has sufficiently examined the existence of the requirements for authorization or permission in accordance with the relevant Acts and subordinate statutes, but failed to discover that the grounds for the application and explanatory materials are false, and thus, it constitutes a crime of obstruction of official duties by fraudulent means (see, e.g., Supreme Court Decisions 200Do2648, Sep. 24, 200; 200Do2608, Feb. 16, 2002).

However, according to the former Military Service Act (amended by Act No. 7186, Mar. 11, 2004; hereinafter “the former Enforcement Decree of the Military Service Act”) and the former Enforcement Decree of the Military Service Act (amended by Presidential Decree No. 18312, Mar. 17, 2004; hereinafter “Enforcement Decree of the Military Service Act”), when the head of the designated entity determines the person to be recommended and is to be enlisted in active service as skilled industrial personnel and submit it to the head of the competent regional military manpower office (Article 36(5) of the Military Service Act; Article 79 of the Enforcement Decree of the Military Service Act); the head of the designated entity bears the duty to notify the head of the competent regional military manpower office at the time of retirement or transfer (Article 40 of the Military Service Act; Article 87 of the Enforcement Decree of the Military Service Act); and other Acts and subordinate statutes related to military service to the designated entity, taking into account the characteristics of the competent administrative office working in the private enterprise and the difficulty of the employer.

In light of the above legal principles and the legislative purport of the military service-related Acts and subordinate statutes, in a case where the pertinent designated entity under the Military Service Act did not intend to serve as industrial technical personnel but submitted an application for enlistment in the pertinent designated entity in collusion with the head of the pertinent designated entity and received approval from the competent authority by submitting an application for enlistment in the industrial technical personnel service, and furthermore, the relevant competent authority applied for secondment by means of preparing and submitting false documents in order to avoid the fact-finding survey, and obtained approval for secondment from the competent authority, the approval for secondment is not a cause of insufficient examination by the competent authority, but rather a fraudulent act by

Nevertheless, even if Defendant 1 prepared and submitted a false joint development agreement with the director of the competent regional military manpower office and approved the dispatch of the Nonindicted Party, the lower court determined that the public official in charge of the competent regional military manpower office did not sufficiently investigate the facts and approved the rest of dispatch that is somewhat believed to be true, and sentenced not guilty of the part concerning the crime of obstruction of performance of official duties by deceptive means. In so doing, the lower court erred by misapprehending the legal doctrine on the crime of obstruction of performance of official duties by fraudulent means, thereby affecting the conclusion of the judgment. Thus, the lower court’s

The prosecutor's ground of appeal pointing this out is with merit.

4. Scope of reversal

As seen above, Defendant 1’s crime of obstruction of performance of official duties through fraudulent means, which is the part to be reversed by the prosecutor’s final appeal, is dismissed and the final appeal by Defendant 1 becomes final and conclusive, and the crime of taking property in breach of trust and the crime of violating the Military Service Act and the crime of violating the former part of Article 37 of the Criminal Act are concurrent crimes with the crime of violating the former part of Article 37 of the Criminal Act. As such, the part of the crime of taking property in breach of trust and the crime of violating the Military Service Act should be reversed together with the part of the crime of taking property in breach of trust and the crime of violating the Military Service Act to be reversed, but the part of the crime of violating the Military Service Act

5. Conclusion

Therefore, the part of the judgment of the court below against Defendant 1 is reversed, and that part of the case is remanded to the court below for a new trial and determination. The appeal by the defendant company is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Yang Chang-soo (Presiding Justice)