2013No2374

A

Defendant and Prosecutor

The highest court and the appellate court shall hold a trial.

Attorney 0, P

Incheon District Court Decision 2012Gohap1423 Decided July 4, 2013

November 2013, 200

All appeals by the defendant and the prosecutor are dismissed.

1. Summary of grounds for appeal;

(a) A prosecutor;

The lower court’s sentencing (one year and three months of imprisonment, and additional collection KRW 100 million) against the Defendant is too unhued and unreasonable.

B. Defendant

1) misunderstanding of facts and misapprehension of legal principles

A) As to illegal solicitation and consideration relationship

Around March 2009, the Defendant was aware that he was scheduled to enter Q University (hereinafter referred to as the “K”) and received a request from G to select H as a special skills student of the E University (hereinafter referred to as the “E University”), and on June 2009, two of the 12 persons initially planned to be a special skills student was vacant and decided to select H through G to confirm that the career of H was not fixed and that H was not determined by the Defendant’s decision. Even according to G and K’s statement, it is difficult to recognize the fact that the Defendant selected H upon receiving an unlawful request, and since there was no understanding on the consideration, the Defendant cannot be deemed to constitute an unjust request retroactively from the fact that he received money later from G, even if having received money from the Defendant, there is no lack of understanding on whether there was an unlawful solicitation or not there was an understanding on the relation of the use of the money.

B) As to the amount received by the defendant

The Defendant first received KRW 30 million, and the second, KRW 50 million, and the second, KRW 80 million, and the false G statements are not reliable. On the other hand, the lower court’s judgment that found the Defendant guilty of the whole KRW 100 million solely with G’s statement was erroneous by misapprehending the facts, thereby adversely affecting the conclusion of the judgment.

2) Unreasonable sentencing

The sentencing of the court below against the defendant is too unreasonable.

2. Determination

A. Relevant legal principles

1) 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’s business receives an unlawful solicitation in connection with his/her duties and acquires property or pecuniary benefits. The crime of taking property in breach of trust is not established unless an unlawful solicitation is opened between a donor of property or benefits and a purchaser of property. The term “illegal solicitation” in this context does not necessarily require it to the extent that it does not necessarily constitute the substance of occupational breach of trust, and it is sufficient if it goes against social rules or the principle of trust and good faith. In determining this, the contents of the solicitation and the amount of the consideration related thereto, form, and integrity of transactions, which are protected legal interests, should be comprehensively considered, and such solicitation does not necessarily require explicit (see, e.g., Supreme Court Decision 2008Do6987, Dec. 11, 200

2) The crime of taking property in breach of trust is established when a person who administers another’s business acquires property, etc. in exchange for an unlawful solicitation in connection with his/her duties, and does not require that the act of taking property in breach of trust or the principal’s damage be inflicted on the principal (see, e.g., Supreme Court Decision 84Do1906, Nov. 27,

B. As to the Defendant’s assertion of mistake and misapprehension of legal principles

1) Facts of recognition

According to the evidence duly adopted by the court below and the court below, the following facts are recognized.

A) On February 2 to 3, 2009, G, a supervisor of the Hague Department of F High School (hereinafter “F high”) received a request related to H’s university admission to the purport that “G, on the one hand, provides career counseling for the father K and H of H, a F high-gu player, and “on the other hand, it is good for Hah to put them into E. E. When entering E.” from H’s entrance.

B) In the absence of confirmation as to whether H conflicts with Q, G has requested the university supervision to request for the observance of S through practice games, etc., and at around March 2009, G requested that the Defendant, who is the supervisor of the E-gu Campbu, be well-known. At the time, the Defendant asked G to the effect that it is difficult to accept the status of all players at the time.

C) After considering the stories that it is difficult for K to select H from G at the investigative agency, K stated that “G supervisor returned to the University located in Seoul, including Rand Q, and used H’s scart, and that it was well aware of other schools that borrowed money from other persons, as the name of the Plaintiff, and that it was not well.” (1) KG was trying to find a university that H may be admitted even before the M&D was held on June 2009.

D) At the investigative agency, G prepared KRW 100,00,000 upon request by the father of H to the school, “I would like to find the school before the month before the unregistered game was lowered to Gwangju.” However, at the time H would have been able to go to the E, “I would like to put the horses again, but I would like to put the horses again.”

E) The Defendant found G at the site of the 2009, June 1, 2009, and confirmed the fact that H was not a university to be admitted, and that G would receive H at E, and that G would have prepared for the Defendant to receive the 100 million won of the support fund for the Winter Training. f) G calls from the Defendant to K upon receiving H’s proposal for entry, and called, “Aber, E, A supervisor, will receive H. It will bring about KRW 100 million of the prepared 10 million.” K sent cash prepared for G around July 8, 2009.

G) After receiving the above money, G calls to the Defendant, and then called “Neung, He received KRW 100 million from his father. I now now?” The Defendant stated that “Neung, I have to do so, and 30 million won is first given that I have to do so, and that I have to do so.” On August 9, 2009, G gave KRW 30 million in cash to another Defendant listed in the Defendant’s next highest seat at the J hotel parking lot, from August 200 to September 9, 209.

H) G stated that, up to the first instance court’s trial, the investigative agency gave 100 million won cash, including the above 30 million won, to the police officer during the period of December 2009, G, and the Defendant also stated that the investigative agency received 100 million won in total from GO to the court of the lower court’s trial. In addition, the Defendant stated that the investigative agency received 30 million won in cash from GO during the fourth trial of the lower court. In particular, in response to the question of the chief judge at the fourth trial of the lower court, the Defendant voluntarily stated that “the Defendant received 30 million won in advance and received 70 million won in December prior to the date of the date of the off-site training.”

2) The following circumstances acknowledged by the evidence duly admitted at the lower court and the first instance court as to the credibility of G’s statement, i.e., ① G’s statement was made two times at the investigative agency and once at the court of first instance. Even if there is a difference in some statements, it is considered only natural phenomenon arising in the process of making a statement at the time of three to four years, ② G statement was rejected on the ground that the Defendant had already extracted players from H, but the Defendant was willing to select H on June 2009, it was divided into two to three occasions and that the sum was KRW 10 million, and the Defendant was not consistent with the Defendant’s statement, ③ the Defendant’s statement at least 10 million in the investigation agency and the Defendant’s statement at the investigative agency and the court of first instance were also consistent with G’s statement at least 60 billion won in the last day before G’s statement was made, ④ The defense counsel was required to have been selected from 200 billion won in the process of making a false statement to 200 billion won in the Defendant’s statement.

3) As seen earlier, in determining whether there was "illegal solicitation", the contents of the solicitation, the amount of the consideration related thereto, the form, and the integrity of transactions, which are legal interests protected by law, should be comprehensively considered. However, according to the above acknowledged facts, ① the contents of the solicitation at issue in this case are to be selected as the E-U.S. E-U. E-U.E. E-U. E-U. E-U. E-U. E-U. E-U. E-U. E-U. E-U. E-U. E-U. E-U. E-U. E-U. E-U. E-U. E-U. E-U. E-U. E-U. E-U. E-U. E-U. E-U. E-U. E-U. E-U. E-U. E-U. E-U. E-U. E-U. E-U. E-U. E-U. E-U. E-U. E-U.E. E-U. E-U. E-U.E.

In the instant case, a defense counsel asserts that it cannot be deemed to constitute an illegal solicitation retroactively from the fact that the payment was not promised in advance, but there was no understanding on the payment, and that it was received later. However, the "illegal solicitation" is not necessarily required to be explicitly, and it is sufficient to say that it goes against social rules or the principles of trust and good faith. The fact that the Defendant, a supervisor of the YY, received a large amount of money upon the request, either implied or explicit, or explicit, in connection with the selection of a person, is in itself contrary to social rules or the principles of trust and good faith, and there is no reason to regard the point at which the money was received. Furthermore, the crime of taking property in breach of trust is established by a person in charge of another's business to acquire property, etc. in return for an illegal solicitation in relation to his/her duties, and it does not require that the act of taking part in or damage to the principal, and even if the Defendant selected a person to report the real force, it does not affect the establishment of the crime

4) According to the above facts of recognition as to the amount received by the defendant, it is sufficiently recognized that the amount received by the defendant is 100 million won in total. In particular, the defendant stated in the defendant examination process of the court of the court below that "I receive 30 million won or more during the nine-month period in which admission is finalized, and receive 70 million won or more in December, 190 before the date of the off-site training," and "I am too flick and flick," while making the last statement that "I am flick and flick in this space. I are more against the defendant's flick and flick, and there are many arguments that I will be 0 billion won or more to the low-income families in this place, and that I am flickly appeal to the defendant as a witness of this case, and that I would not have any other reason for the defendant's statement that I would like to be 00 billion won or more in this case, and that I would not have any other reasons for the defendant's statement.

(v)In Japan;

Therefore, it is just that the court below found the defendant guilty of the charge of taking advantage of breach of trust, and there is no error of misunderstanding of facts or misunderstanding of legal principles, such as the defendant's grounds for appeal.

The Defendant, as an educator who is in charge of the field of the field of the E University, who is a supervisor of the field of the field of the camp and received a large amount of money that is KRW 100 million in return for a specific student’s selection, was given and received in return for the illegal solicitation related to the selection of a specific student. As a result, there was a significant result that the fairness of and social trust in the selection of a specific student in the field of the field of the field of the education where fairness in the field of the education where fairness is emphasized without any duty and expectation. Thus, this case is far more serious than that of the public official’s acceptance of bribe in the field of the education where fairness in the field of the education where fairness is emphasized. Furthermore, the Defendant reversed the previous attitude of the Defendant to the contrary, and the Defendant did not reverse the previous attitude that was disadvantageous to him.

However, in light of all other circumstances, including the Defendant’s age, character and conduct, environment, motive, means and consequence of the crime, and the circumstances after the crime, the sentencing of the lower court, which is sentenced to 1 year and 3 months, is determined to be appropriate, and it cannot be said that it is too easily or excessively unreasonable.

Therefore, both the Defendant and the prosecutor’s assertion of unreasonable sentencing cannot be accepted.

3. Conclusion

Therefore, the appeal filed by the defendant and the prosecutor is without merit, and all of them are dismissed in accordance with Article 364 (4) of the Criminal Procedure Act. It is so decided as per Disposition.

Judges of the presiding judge, Yellow Judge

Judges Hun-Ba

Judges Nam-yang

(i) evidence No. 1, 521 of the evidence records.

(ii) evidence No. 1, 491 pages

(iii) evidence No. 1, 375, 521 pages

4) G Party’s legal statement and evidence record No. 1, 351, 492 pages

5) It is difficult to understand that the defendant's assertion as to the grounds for appeal is identical to that of the grounds for appeal due to the change in the previous attitude of the defendant.

6) Rather, examining the amount of K’s payment to K appearing in the K’s statement, G shows 5 million won in its own money.

There are some aspects of solving questions about the part that it created KRW 100 million.