2015No2320 A. Breach of trust

(b) Property in breach of trust;

1. A.

2.2.B

Defendants and Prosecutor (Defendant B)

Kim Jong-chul (Court) (Court of Second Instance) (Court of Justice)

Law Firm C (for Defendant A)

Attorney AP, D, E, Q

Law Firm (in the interest of the second half of Korea)

Attorney G, H

Attorney M (Defendant B)

Law Firm AR (for Defendant B)

Attorney AS, AT, and AU

Seoul Central District Court Decision 2015Gohap160 Decided August 13, 2015

January 29, 2016

All appeals by the Defendants and the Prosecutor against Defendant B are dismissed.

1. Summary of grounds for appeal;

A. Defendants

1) Defendant B

A) misunderstanding of facts and misapprehension of legal principles

(1) Q and S organization 1 is a citizen group of the network organization with a slow speed. Thus, the status of a person who belongs to the above organization cannot be recognized. (2) The Defendant’s receipt of compensation for dismissal under personal agreement with the Defendant (hereinafter “instant agreement”) and preparation of a written application, etc. in return is irrelevant to the duties of “a person who administers another’s business,” and the commitment to suspend the act of attack and criticism against Q or S organization cannot be deemed as the duty assigned to the Defendant by Q or S organization, and the promise to suspend the act of attack and criticism against A, etc. cannot be deemed as a violation of the duty.

(3) The Defendant agreed to receive wages for the period of dismissal for seven years and seven months as dismissed workers and compensation for the equivalent amount, and the series of actions that the Defendant agreed to submit a written application for coal payment was derived from actions to find the personal rights of the Defendant. It cannot be said that A requested the submission of a written application for coal payment and prohibition of criticism in the court, upon agreement with the Defendant who was in the status of the victim in his criminal case.

(4) In the instant agreement, several attorneys-at-law were involved in both the Defendant and A, and in the process, attorneys-at-law consulted with no illegality in the instant agreement and agreed on the trust of the Defendant. Thus, the Defendant did not have the awareness of illegality, and there is justifiable reason for such mistake.

(5) Nevertheless, the court below erred in misunderstanding of facts and misunderstanding of legal principles that found the defendant guilty of the facts charged.

B) Unreasonable sentencing

The punishment of the lower court (two years of imprisonment, additional collection of KRW 800 million) is too unreasonable.

2) Defendant A

A) misunderstanding of facts and misapprehension of legal principles

(1) The promotion and rhythy of the Defendant cannot be deemed as a delegation of the duty from BI Q. Therefore, it cannot be deemed as an act in violation of the duty with the intent to discontinue the above act.

(2) The Defendant accepted B’s demand by cutting away from B’s public conflict and intimidation, and thus, it cannot be deemed that the Defendant made an illegal solicitation and offered money and valuables to B. (3) As a party to a criminal case, the Defendant’s request for the preparation of a written application cannot be deemed as unlawful by itself, and the Defendant did not have any awareness of illegality as it was caused by the attorney’s active advice and solicitation. (4) The lower court failed to explain its reasoning while determining that the instant agreement constitutes a crime of breach of trust and evidence collection even to the S organization.

(5) Nevertheless, the court below erred in misunderstanding of facts and misunderstanding of legal principles that found the defendant guilty of the facts charged.

B) Abuse of prosecution power

When the prosecutor prosecutes the defendant, the lawyers who recommended the defendant to reach an agreement with B and consulted with the defendant constitutes abuse of public prosecution power.2)

B. Prosecutor: Unreasonable sentencing on Defendant B

The sentence of the court below is too unhued so as to be unfair.

2. Judgment on Defendant B’s assertion of mistake or misapprehension of legal principles

A. Summary of the judgment of the court below

In light of the following circumstances acknowledged based on the evidence duly adopted and investigated, the lower court determined that: (a) the Defendant’s position to manage another person’s business in relation to Q is recognized as having received KRW 800 million in exchange for illegal solicitation in relation to his/her duties; and (b) even if the Defendant misleads the Defendant that his/her act was not a crime in relation to the above act, it cannot be said that there was a justifiable ground for such misunderstanding.

1. A person who administers another's business;

① At the time of its establishment around August 2004, Q has declared the purpose of promoting critical public theories on speculative capital, urging the Government to regulate, and preparing a constructive alternative through the declaration of its establishment. The organization of the representative, the steering committee chairperson, the operating committee members, and the secretary general, etc. ② Q has made a regular and regular decision-making process each month; ② Q has been engaged in external activities, such as holding public hearings to criticize speculative capital through such decision-making process, holding media activities, criminal charges, and leading civil litigations for small victims; ③ the Defendant, as the chairman of the operating committee, has led the activities to criticize N’s P acceptance and Tmerger; ③ In light of the fact that Q has been receiving activity expenses each month from Q in the process, it cannot be deemed that Q has granted the authority to conduct external activities by expecting the Defendant to act in a fair and clean manner in conformity with the purpose of the organization and using it in the position of the chairman.

2) Although the instant agreement and the written application in relation to the duties are written in the name of the Defendant in the name of the Defendant, in light of the following circumstances, the content that the Defendant promised in the agreement with A is not merely to refrain from criticism on an individual level, such as the language and text thereof, but also to de facto restrain group activities conducted in the position of the chairman of the operation committee of Q. The Defendant cannot be evaluated as having recognized the meaning thereof, and thus the relationship between the agreement and the affairs handled by the Defendant in Q can be acknowledged.

A) The Defendant made the victim’s statement in a criminal trial prior to the instant agreement. ① The victim’s statement submitted to the said criminal trial was prepared in the name of 495 victims of the market manipulation in the name of proxy, ② Attorney X was a joint representative of Q, and U.S. as well as the head of the Secretariat of the victim’s organization was also a party suspected of violating the Securities and Exchange Act. ② The victim’s statement was made by Q was a party suspected of violating the Defendant’s proposal and Q decision-making. The victim’s statement was posted in the office of the chairman of Q, and ③ The secretary General of Q was posted in Q’s website. ③ The victim’s statement was not the victim, but the victim’s statement was accompanied by the Defendant’s statement of intent to urge Q’s immediate restraint and punishment while accompanying the Defendant’s court attendance, and ④ The Defendant was a person who led to criticism on the victim’s status, such as the chairman of Q’s operating committee, and the Defendant stated the victim’s statement as a part of the statutory monitoring activities.

B) ① The Defendant, as the chairman of Q’s operating committee, was exposed to a considerable number of criticism activities against the N, and took part in the ALE N’s P management, and was aware of the Defendant and its affiliated organizations and their activities through the media. ② The Defendant, along with Q Q’s pay, urged A to take advantage of A’s trial, namely, prompt restraint and strict punishment, represented the victims. The Defendant was detained in court immediately after the demand for monetary compensation within dismissal, and the Defendant requested A to take account of the fact that the Defendant’s continued criticism could not have a significant influence on the judgment, and that the Defendant did not have any social influence on the victim’s 495 victim’s 195 victim’s 3rd-person’s 495 victim’s 195 victim’s 3rd-person’s 495 victim’s son’s son’s son’s son’s son’s son’s son.

C) The Defendant, not only as the victim of the N incident but also as a part of the activities of public nature that criticizes speculation capital in the position of the chairperson of the operation committee of Q. The suspension of hostile activities proposed to A by him cannot be limited to the suspension of personal activities as the victim, and the suspension of organization activities in Q within the scope is bound to be suspended, and the Defendant does not seem to have known that the Defendant could be able to comply with the agreement on the grounds that he and his influence on the group.

3) Illegal solicitation

Since the chairman of Q Q’s operation, which has a strong public nature, was in the position of the vice chairman of the organization, the changes in the future direction of activities in question had been fairly decided so as not to damage the trust of the public nature, but it was merely one of the large number of dismissed workers, and thus, one of them cannot be the ultimate objective of Q and S organization, if personal compensation is made, then his hostile activities are suspended, and if personal compensation is made, a large amount of 80 million won has been received from A through the last intelligence threatening to continue the hostile activities, and as a whole, A, who was attacked from the above organizations, could actually change the direction of activities of the organization in return for the payment of 80 million won to the individual, in return for the payment of 80 million won to the individual, it can be recognized that the agreement between the defendant and A was an unlawful solicitation.

4) Although the Defendant was aware that his proposal was not only a change in his personal position, but also a change in the direction of the organization to which he belongs, the Defendant demanded large money in return for such change, and the attorney-at-law who participated in the amendment of the written agreement as the representative of the Defendant stated that at the time the Defendant gave advice to the Defendant that “a large amount of money and valuables received through such agreement may be an act of distribution to Q, shall be determined carefully and carefully with the executives of the organization, and even if receiving money and valuables, a partial donation to the organization is made.” In light of the background leading up to the receipt of money and valuables, the Defendant’s age, educational background, career, etc., even if the Defendant was mistaken that his act was not a crime at the time, there is no justifiable ground for mistake, and even considering the circumstances that the attorney participated in the process of the agreement, it cannot be viewed otherwise.

B. Judgment of the court below

1) Relevant legal principles

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 obtains property or pecuniary benefits in exchange for an unlawful solicitation in connection with his/her duties. “Person who administers another’s business” refers to a person who is aware of the existence of a personal relationship to mislead the business in light of the principle of trust and good faith with another person in an internal relationship with another person. It does not necessarily mean that a person has an authority to conduct such business in an external relationship with a third person, and it does not require a comprehensive entrusted business. In addition, the ground for the conduct of business, i.e., the ground for the occurrence of a fiduciary relationship, may arise through statutory provisions, legal acts, customs, or office management (see Supreme Court Decision 2010Do11784, Feb. 24, 201). In addition, the crime of taking property in breach of trust is established when acquiring property or pecuniary benefits in return for an unlawful solicitation in relation to one’s duties, but does not necessarily require an explicit solicitation between a person who violates a certain duty or causes loss.

2) Specific determination

In light of the above legal principles, in addition to the following circumstances that the court below and the court below duly admitted and investigated by the evidence duly admitted and investigated by the court below, the court below's judgment is just, and there is no error of misconception of facts or misapprehension of legal principles as to whether the defendant is a person who administers the affairs of Q and S organization and received 800 million won in exchange for an illegal solicitation from A in relation to such affairs. Thus, the court below's judgment is not justified, and it is not erroneous in the misapprehension of legal principles. Therefore

(1) Q.

(A) ① Q has been consistently engaged in external activities to achieve the purpose stated in its establishment declaration without changing its name, etc. for more than 10 years after its establishment on August 25, 2004; ② Q has been engaged in full-time employees such as the office chief at the time of its establishment; ③ at the time of its establishment, Q still has an office located in Jongno-gu Seoul, Jongno-gu, Seoul, AW building 18 Dong AW building 18 Dong AX305; ③ regardless of the change due to the joining, withdrawal, etc. of a specific person, Q actually continued to exist in the organization; ③ the defendant was subject to investigation into the prosecution; the I Q decision-making process was conducted as a full-time member at the meeting of the Steering Committee; ③ all activities were reported to the operating committee in advance; ⑤ The Q is a manager or a large number of individual members after opening the website; and ③ it cannot be acknowledged that Q is separate from the articles of association or bylaws, even if it is a member of the association.

(B) After the establishment of Q, the Defendant developed activities related to Q as a member of Q’s operating committee, policy chairperson, and joint representative. During this process, the Defendant received activity expenses of KRW 500,000 monthly from Q. The Defendant’s source of activity expenses is support payments paid by operation members, supporters’ association members, etc., and Q’s management chairperson, policy chairperson, etc. to allow a specific person to use such name by taking into account the following factors: (a) the Defendant’s use of such name is necessary for Q to act as a representative of Q to represent the position of the National Assembly’s presentation of discussions, etc.; and (b) the Defendant has a duty to receive a certain position from Q and act in its name; and (c) the Defendant, who received activity expenses from the principal, has a duty to perform activities in accordance with Q’s purpose of existence.

(2) A S organization

(A) As an associated organization of the R trade unions established in 1999, the S organization aims to actively protect the rights, honor, and interests of workers, strengthen the dynamic intellectual ties to improve the status of affiliated unions and their members, and promote their welfare, and provide regulations on the purpose, business, organization, etc., ② The S organization has an organization and system, such as the establishment of a board of directors, a joint vice-chairperson, a board of representatives, a central committee, a central committee, and a central enforcement committee, etc., and the regular affairs have been discussed first at the board of directors to decide whether to present the agenda to the central enforcement committee. ③ In light of the fact that the S organization has been performing activities that make it difficult for the unit trade unions to individually engage in, such as criticisming speculative capital, etc. with the awareness of the inherent speculative nature of foreign capital, it should be distinguished from the unit of trade unions.

(B) In around 2004, the Defendant entered a body-based organization and carried out a vice-chairperson, and received a large amount of KRW 2.9 million each month from the S organization.8) After the Defendant was employed as an executive, the S organization has argued that N-related commentaries and news report data distribution, assembly and demonstration, etc., 'P sale and telecommunication invalidation', 'resigning to 'proving', and 'mix of stock price manipulation-related parties'. As above, the Defendant is obliged to engage in activities under the name of the S organization upon being granted a certain position from the S organization, and the Defendant who received benefits is obligated to engage in activities for the purpose of existence of the said organization.

B) Duties relevance

(1) In light of the fact that Q was the party who filed an accusation against Q as a violation of the Securities and Exchange Act, and that Q was the core element of Q at the time of the instant case, AY, which was the operator of Q, demanded punishment as a matter of course from the perspective of the organization, and that Q’s punishment is not a requirement for Q, and that Q’s joint representative X and U’s name were stated in Q’s written application for victim’s statement and urged Q’s severe punishment while making the victim’s statement, it is determined that Q’s management committee members agreed to the direction of action seeking punishment against N related persons, such as Q’s explicit or impliedly. 9)

(2) At the time of the occurrence of the instant case, AD, which was in the position of the vice-chairperson of the S organization with the Defendant, stated in the court below that “In order for the S organization to take place a strike, there must be a justification and clear distribution of the strike, and N was not recognized due to the legality or price manipulation, etc. at the board of directors held on September 201, that there was an agreement between the Defendant and N in the manner of settlement with N, but the AZ Vice-Chairperson and himself opposed to the agreement from the point of view that the Defendant would take place.” In light of this point, the direction of the S organization’s activities is deemed to have been seriously pursuing liability against N, and it appears that there was an objection against the personal agreement that is contrary thereto.

(3) The Defendant was led by Q and group to propose the direction of the strike and activity for N. The Defendant’s activities such as contact with the Defendant’s N-related media media, discussions, and assemblies inside each of the above groups seems to have been recognized as a member of Q.10) As seen earlier, the Defendant received activity expenses from Q, received monthly salary from Q, and continued to take full charge of the Defendant’s activities related to N-related organizations, such as demand for criminal punishment against those related to A., and even before and after the instant agreement, there was no decision to change the direction of activities within each of the above organizations, and there was no other decision to change the direction of activities within each of the above organizations and did not establish another activity to continue the above activities. Accordingly, the suspension of the Defendant’s activities is bound to result in the decline or suspension of activities within each of the above organizations, and the receipt of money by the Defendant without doing so is related to the above organizations’ duties granted by each of the above organizations, and in light of the agreement among Q and the above organizations, the Defendant appears to be in violation of the duty of Q and the above organization.

(4) The Defendant’s act of assisting a worker dismissed by speculative capital for the purpose of establishment and activity of Q to receive reinstatement and compensation for damages. Since S organization has seen the result through the activities against N on the part of the Defendant’s reinstatement or damage compensation issues, the act of the Defendant agreed with A and received compensation for damages due to dismissal constitutes an act of breach of duty against each of the above organizations.

However, the above argument cannot be accepted for the following reasons.

(A) The Defendant, as a worker, was dismissed on February 27, 2004 from T in the course of the merger of T as a worker, was dismissed on February 27, 2004, and there was a request for remedy such as unfair dismissal in sequence with the Seoul Regional Labor Relations Commission and the National Labor Relations Commission, but all of which was dismissed, and the Defendant filed a lawsuit for cancellation of the decision to dismiss the application for unfair dismissal, but the judgment against the Defendant was sentenced to the judgment against the Plaintiff until the Supreme Court on October 25, 2007, and the judgment against the Defendant became final and conclusive until the Supreme Court on October 25, 2007, and there was no room for dispute

(B) On November 21, 2003, where P intended to merge with T on favorable terms, it was under trial on the violation of the Securities and Exchange Act by publishing the "T capital reduction review policy" on November 21, 2003 to the market, and the content of A's trial was not related to the dismissal of the Defendant. (c) As to the Defendant, the legal party that would discuss the validity of dismissal or compensation is merely T or merged P, and even if A's act of price manipulation was promoting or affecting the layoff of T, it is nothing more than a natural causation. A's representative director position at N around June 2009, and N has retired from P's office on March 31, 201, as well as P's sales share to the stock company on November 25, 2010, prior to the agreement of this case, was not in the position of consultation on the reinstatement or dismissal of P or the Defendant as a manager.

(D) The Defendant’s involvement in the Defendant’s criminal trial was not the victim’s status as a dismissed worker, but as the victim of the stock price manipulation case. The Defendant’s act was also an act of criticism, public opinion creation, etc. against A and N related to the stock price manipulation case. A stated that Q and the Defendant stated that Q and the Defendant could not be considered separately, and that AB, who participated in the instant agreement with A, was not related to compensation for damages, and that there was no all the contents of consultation as to the fact of damage. 14)

(E) The Defendant is the last overlap with A, and “I will submit a written application, such as a written request to shot a thousand person who is aware of the proposal, and show continuous and strong behavior in the court.” The Defendant, not as an individual who was dismissed or a victim of stock price manipulation, may be evaluated as having received the instant money as a means of threatening the threat of the organization to which he belongs, on the ground that he was not the victim of dismissal or stock price manipulation.

(f) The defendant asserts that 80 million won is compensation for dismissal under the pretext of wages and consolation money for seven years and seven months of dismissal. However, the defendant's argument is not persuasive in light of the following: (i) the amount first demanded by the defendant is deemed to have been one billion won or more, and (v) the Section 2 of the Agreement of this case is to be paid more than one billion won within one week from the date of sentence when A is sentenced to a suspended sentence; and (ii) the amount to be paid in accordance with A's criminal case sentence is added is not consistent with the nature of compensation for dismissal.

(5) The Defendant asserts that an attack and criticism may not be included in the activities of Q and S organization’s objective. However, as seen earlier, Q is a party to criminal punishment against A, S organization has expressed its opinion on the illegality of N’s share price manipulation process, etc., and S organization has also expressed its opinion. S organization’s attack and criticism is also an important and ordinary strike, as well as assembly, demonstration, port, name, and legal strike is also one of the 17). In light of the foregoing, the Defendant’s attack and criticism against A is an indivisible relationship with each other’s previous activities, i.e., the activity that held responsibility to N related persons, including A, and is an indivisible relationship with the activity that sought a punishment for response. However, it seems that there is a difference in the attitude or active nature of the act.

(6) The contents of the agreement of this case cannot be deemed to mean that the defendant only applies to the suspension of an excessive attack, such as disturbance of legal action against A and its related persons, and ultimately, it means the waiver of overall criticism and public opinion creation, which imposes responsibility on N-related persons, including A, as the activity of each of the above organizations. Furthermore, it cannot be said that the suspension of each of the above activities, which the defendant, who did not change the direction of the activities of each of the above organizations through internal decision-making, has almost all of the above organizations, is the same as the suspension or curtailment of the activities of each of the above organizations.

C) Illegal solicitation

① Although the agreement in this case takes the form of personal agreement between the Defendant and A, the actual contents of the agreement are to suspend or obstruct the activities related to Q and S organization through the Defendant’s attack and the suspension of criticism against Q and S organization, which may threaten the performance of the purpose of each organization, which may damage its essence, and the Defendant was paid a large amount of KRW 800 million without notifying other dismissed or the victims of the instant agreement, as well as Q and S organization related to Q and S organization, in return for the agreement in this case, and ③ the Defendant requires integrity and transparency which are not an organization’s executive officer. In light of the above, it is reasonable to view that the agreement in this case was an act that may reduce or suspend the activities that the Defendant led as executive officers of the organization in line with the individual interest of KRW 80,000,00,000 according to the direction of activities determined by implied and implied decision-making, which may obviously result in a threat to the performance of their duties and the purpose of the agreement.

D) In full view of the circumstances surrounding the awareness of illegality and the circumstances surrounding the instant agreement, and the provision that the content of the agreement shall not be disclosed to a third party without the other party’s prior written consent, and the Defendant did not inform Q and S organization of the existence of illegality at the time of the instant case. In light of the Defendant’s age, educational background, career, etc., even if the Defendant did not have any awareness of illegality, it cannot be deemed that there was a justifiable reason for such mistake.

3. Judgment on the mistake of facts or misapprehension of legal principles by Defendant A

A. The judgment of the court below

According to the evidence duly adopted and examined, the court below acknowledged that ① the demand for punishment of the Defendant was made as part of the activities that criticize and monitor speculative capital at a public interest level, so the Defendant’s legitimate mission assigned by Q, etc. and the duty relation between Q, etc. and the affairs handled by B may be acknowledged. ② Even if the Defendant delivered money and valuables on the land where he was imminent, in a criminal trial, he was trying to bring the criticism of the organization through giving a large amount of money and valuables to the person who was led in the activities of a new organization that made a normal agreement with the organization that criticizes himself, and the money and valuables offered as such would be considered as a consideration for illegal solicitation contrary to social norms or the principles of good faith; ③ the Defendant received the proposal, thereby preventing him from causing any legal problems in the future, and sought advice from the attorney-at-law several times, and accordingly, sought advice.

In light of the fact that it cannot be said that there is a legitimate ground for mistake even if the defendant was mistaken that his act was not a crime at the time, the defendant can be found guilty of this part of the facts charged, in light of the following: (a) the defendant tried to avoid legal problems that may arise through the method of preparing a written agreement in his personal name; and (b) the defendant's age, educational background, and career.

B. Judgment of the court below

In addition to the following circumstances acknowledged by the lower court and the lower court based on the evidence duly admitted and investigated by the lower court, it can be recognized that the Defendant made an illegal solicitation and delivered KRW 800 million to B in relation to his/her duties. Therefore, the lower court’s judgment is justifiable and it cannot be said that there was an error of mistake of facts or of misapprehending of legal principles.

Defendant’s assertion is without merit.

1) Other persons and the relevance of duties

A) The Defendant’s agreement to suspend B through the instant agreement is not limited to “an act of unfairly affecting a trial due to legal disturbance, etc.” but was an act of creating and criticisming the overall public opinion of N and the Defendant, which is deemed to have been able to perform within its legitimate scope of duty as a non-governmental organization, and the demand to stop the Defendant’s agreement against the person believed to have caused harm to financial order due to the price manipulation, etc. is difficult to be deemed as an act deviating from social norms.

B) As seen earlier, the position of executives of Q or S organization urged Q or Q or S organization to strictly punish the persons involved in the market manipulation, including A, and even around the time of the instant agreement, each of the above organizations was in line with the direction of its activities and, even though it had been in line with B’s activity that was almost exclusively dedicated to the pertinent activities in each of the above organizations, the activity of the above organizations in de facto chilling or suspending the activities of the above organizations is related to B.

C) Although the defendant had different position in Q in the court of the court below, he stated that he was aware of the fact that he was actively dealing with N-related matters as an active activity in the above organization.20) Meanwhile, at the second investigation of the prosecution, the defendant stated that he was aware that he was involved in N-related cases while he did not know of specific names, but he was involved in the activities in several organizations. 21) AB also made a statement that "B is in the lead of activities in several groups," and even if he was aware of all such activities, he did not carry out public opinion creation activities in the manner that he did not go through the interview of journalists, etc., even though he did not carry out such activities.22) The crime of taking property in breach of trust against several others is established, and it is sufficient to say that there was a violation of the purpose and content of the above organization's request and that he did not deal with the affairs in this case.

2) Illegal solicitation

A) The establishment of the crime of taking property in breach of trust under Article 357(1) of the Criminal Act against B is recognized. Meanwhile, the crime of taking property in breach of trust under Article 357(2) of the Criminal Act is ordinarily necessary accomplices.

Although there are limits, this does not necessarily mean that a person who has received evidence and who has received evidence should be subject to punishment as the same person, and a person who has received evidence may be subject to illegal solicitation even when he/she is subject to legitimate duties (Supreme Court Decision 2010Do7624 Decided October 27, 201). However, the content of solicitation of a person who has received evidence may be exempted from the liability for the crime of giving evidence in breach of trust, so that it is necessary to protect the legitimate and legitimate rights and interests of a person who has received evidence in ordinary or ordinary duties.

B) Although the Defendant did not reach the agreement in this case due to the threat, etc., and delivered money and valuables, the Defendant, while entering into a non-disclosure agreement with the victims of the price manipulation, instead of responding to the agreement with the victim of the price manipulation or with the organization to which B or the group to which B belongs, intended the effect of suppressing the overall activities of the non-governmental organization to which he belongs; the amount of a large amount of KRW 80 million was decided as the price; the Defendant did not have any other choice than granting KRW 80 million to B; even though it was difficult to deem that there was no choice, the Defendant did not refuse the demand of the Defendant or disclose his unfair proposal to B; rather, the Defendant did not think that there was a method of receiving an application for the payment of KRW 80 million to B; it constitutes "illegal solicitation" and it cannot be deemed that it was for the Defendant's ordinary work or legitimate and for the protection of rights and interests.

3) 위법성 인식피고인은 개인으로서의 B에 돈을 준 것이 아니라, 자신에 대한 엄멀탄원을 하는 '여러 단체에서 활동하는 단체의 대표자로서의 활동을 중지시키기 위하여 금원을 지급한 것으로, 당시 "많이 찝찝했다. 변호인들에게 수회 걸쳐 확인했다. 문제가 있는 것은 아닌지, 그래서 법적인 문제가 없이 해달라고 하였다"고 진술하였다.24) 여기에 피고인의 나이, 학력, 그간의 사회생활 경력 등에 비추어 보면 피고인이 자신의 행위가 죄가 되지 아니하는 것으로 오인하였다고 하더라고 그와 같은 오인에 정당한 이유가 있다고 할 수 없다.

2) Determination as to abuse of public prosecution power

A) Relevant legal principles

In a case where the prosecutor voluntarily deviates from the discretionary power to exercise his/her discretionary power to bring a substantial disadvantage to the defendant, the effect of the prosecution may be denied by deeming it as abuse of the discretionary power. However, the mere negligence in the course of performing his/her duties is insufficient to be recognized as arbitrary exercise of the authority to institute a public prosecution, and at least dolusent or any intention is recognized. Meanwhile, the prosecutor has discretion to decide whether to institute a public prosecution in consideration of the suspect’s age, character and conduct, intelligence and environment, relationship with the victim, motive, means and consequence of the crime, circumstances after the crime, etc. in a case that constitutes the elements of a crime. Thus, the public prosecutor has discretion to decide whether to institute a public prosecution in consideration of the suspect’s age, character and behavior, intelligence and environment, relationship with the victim, motive, means and consequence of the crime. Thus, the institution of public prosecution following the exercise of discretionary power

The mere fact that a person who was not prosecuted despite having committed an act meeting the requirements for the constituent elements of a crime does not constitute abuse of the right to institute a public prosecution against equality rights or sound reasoning (see, e.g., Supreme Court Decision 2010Do9349, Jul. 12, 2012).

B) Specific determination

In the instant agreement, the attorneys appointed by the Defendant and B participated in the agreement itself, and in particular, the Defendant’s direct provision of money from the attorneys-at-law in the agreement itself can be recognized as having been contacted. However, considering the nature and circumstances of the crime and the fact that the provision of money differs from those of the parties involved in the agreement; the person who actually required the agreement in this case was the Defendant; and the attorneys are those who have the responsibility to respond to N and the Defendant’s request, and the attorneys are those who have the responsibility to respond to N and the Defendant’s request, it is difficult to conclude that the prosecutor has arbitrarily exercised the right to prosecution by clearly deviating from the discretionary power of prosecution. Accordingly, the Defendant’s assertion on this part is without merit.

The fact that the defendant received money from A itself has been recognized from the beginning of the investigation, there is no record of criminal punishment exceeding the past record of the same crime and suspended execution, the defendant actively developed a citizen movement in the position of executive officers such as Q, etc. after dismissal during N's Telecommunication process, and concentrate on public interest activities to inform the problems of speculative capital and risks, and the fact that the defendant continued his restoration to the original state and the demand related to compensation for dismissal until the agreement of this case, etc. are favorable to the defendant.

However, while the crime of this case was led by the defendant's external activities that activate the criticism of N et al. as executive officers of civic groups, the defendant's act of receiving KRW 800 million from the perspective of confidentiality in return for the suspension of critical activities, etc. upon the restraint of A's legislation. The defendant's act is used to acquire the public status of a citizen as a citizen's activity, and it is not good that the defendant's act is a criminal act that impairs the honor of a civic group with integrity and transparency as a citizen's behavior and causes a reliance on the overall activities. Nevertheless, the defendant receives money as compensation for dismissal, and it is consistent with the defendant's assertion to the effect that the defendant's act was for personal reinstatement and compensation.

In addition, comprehensively taking account of the Defendant’s age, character and conduct, environment, motive and background of the crime, means and consequence of the crime, all of the sentencing conditions indicated in the records, such as the circumstances after the crime, and the scope of recommending punishment according to the sentencing guidelines of the Supreme Court Sentencing Committee applicable to this case (three to five years), etc., the lower court’s punishment is too heavy or unreasonable.

Therefore, this part of the prosecutor's and the defendant's argument is without merit.

4. Conclusion

Therefore, the appeal against the defendant B by the defendants and the prosecutor is without merit and it is so decided as per Disposition by the dismissal of all the appeals in accordance with Article 364 (4) of the Criminal Procedure Act.

The presiding judge and the judge;

Judges Singing on Board

Judges are accommodated in judges;

1) S organization, hereinafter referred to as “S organization”).

2) The Defendant’s defense counsel stated that the Defendant’s assertion of abuse of public prosecution power was under review on the date of the first trial of the court.

There is no express withdrawal of the above argument until the ruling date.

3) At the time of “A”, the lower court did not give a large amount of money to one of the victims and did not agree. However, the lower court led group activities.

Since the suspension of personal activities by the Defendant would result in the curtailment of collective activities, the Defendant’s personal agreement also leads to the interruption of collective activities.

attorney-at-law who may obtain results and may avoid legal problems that may be caused in the future.

It is also pointed out that "the agreement was reached in the name of an individual according to advice."

4) The lower court: (a) the Defendant’s suspension of hostile activities against A; and (b) the Defendant’s refusal of position on N Cases to A

It can be understood that the financial institution goes beyond the context of difficulties and punishment, and goes against the macroscopic aspect of the improvement of the financial system.

There is a change in the position that the chairperson of Q Q has sufficiently selected as the vice-chairperson of the S organization.

However, the change of the direction of the activity should have been decided fairly.

5) At the time of the instant case, U appears to have been full-time by the Secretary General.

6) A total of KRW 59,200,000 was paid from December 2006 to January 2015 as activity expenses. Right of evidence record No. 4

Part 198. Investigation Report [Attachment of Payment Details, such as Expenses for Activities, received from Suspect B]

7) Statement at the lower court’s trial court in X

8) 162,91,54 in total for four and three months from 2009 to 2013, page 1954 in evidence records, investigation reports

【Attachment of Details of Benefits, etc. received from Suspect B S Organizations】

9) AY continued in the court of the court below’s decision that “IY’s case related to NBB lawsuit or tax evasion case involving Q as the defendant’s representative”

It stated that the defendant was removed from office by determining that such group activities are prohibited.

10) Each statement at the lower court court’s jurisdiction X and AD

11) Seoul Administrative Court 2005Guhap24452 case

12) The Seoul High Court Decision 2006Du10537 decided dismissed the appeal, and the Supreme Court Decision 2007Du15940 decided dismissed the appeal.

13) A’s statement in the court below (Examination of Witness)

14) Part of the record of evidence Nos. 3, 1757, and the prosecutor’s statement prepared by AB

15) On the amount first requested by the defendant, W is "1 billion won" in the prosecution, and W is "specific in the court of the original instance."

AA and AB made a statement to the effect that the expression or amount of the person is not memory, and in each prosecutor's office and each court below's court

On the other hand, A made a statement that "one billion won or more" was "one billion won or more" at the prosecution.

16) The Defendant asserts that the above KRW 400 million is an amount calculated by adding 50% of the amount of mental damage to KRW 800,000,000,

In light of the size and ratio of each of the above amounts, the above assertion is difficult to accept.

17) AD’s legal statement in the original judgment

18) The Defendant was serving as the main role in Q and S organization with respect to N, and the Defendant’s own agreement of this case also

For the purpose of this case, I stated that “I had the meaning that I will no longer do work.”

Before and after such date, the Defendant, as well as the executive officers of Q or S organization, has strict measures against N, including A.

It appears that there was no opinion to seek punishment, and on February 2012, the previous opinion on the sale of P.

In the position (the defendant also opposed to the sale of P and accused BA) the form of a pre-sale agreement.

The attendance was also made.

19) The number of the instant cases where most of the witnesses who engaged in collective activities with the Defendant received KRW 80 million.

statement that it has become known after the commencement of its proceedings.

20) Class II trial records Nos. 805, 810

21) Evidence No. 3, No. 1809 of the record

22) Evidence Nos. 3, 1757 of the record

23) Even if the defendant was released under B, it cannot be deemed that the defendant was out of his own will, and the defendant is against the defendant's will.

In light of the fact that assistance of counsel has been obtained and the content of the agreement and the written application for coal has been prepared, it is necessary for the crime of giving rise to breach of trust.

It seems that there was an illegal solicitation.

24) No. 3, No. 1809, No. 1811, the protocol of examination of the suspect against A of evidence records

25) [Determination of type] Acceptance of Misappropriation, Type 4 (at least KRW 100 million)

【Special Aggravation Doctrine Doctrine Doctrine : None of the elements of mitigation: ○ Doctrine Doctrine

[Scope of Recommendation] Three to Five years of imprisonment (Aggravated Field)