209Do7568 Acceptance of Misappropriation

Kim State of Kim (**********************), OO TV programming planning Bureau PD

Seoul National Library;

Reference domicile national drawings in Seoul

Defendant

Law Firm Tae, Attorney Lee In-bok, Counsel for defendant-appellant

Seoul High Court Decision 2009No518 Decided July 10, 2009

September 9, 2010

The appeal is dismissed.

We examine the grounds of appeal.

In the crime of taking property in breach of trust, illegal solicitation refers to solicitation goes against social norms and the principle of trust and good faith, and in determining this, comprehensive consideration of the contents and form of the solicitation, and the integrity of transaction, which is the legal interest protected by the law, should be given. The solicitation is not always explicitly made, but it is inevitable even if it is implicitly made (see Supreme Court Decisions 2005Do1732, Jun. 9, 2005; 99Do2165, Apr. 9, 2002, etc.).

In light of the circumstances stated in its reasoning, the lower court affirmed the first instance judgment convicting the Defendant of the facts charged on the ground that: (a) the Defendant, a senior producer (CP) affiliated with the KBS Arts Bureau, provided opportunities to purchase the shares expected to receive considerable profits from the market price (hereinafter “the shares of this case”) as stated in its reasoning by offering an opportunity to purchase the shares (hereinafter “the shares of this case”) operated by the entertainment planning company and the director in charge of publicity; (b) contributed to the entertainment planning company’s entertainment program; or (c) received an implied request to broadcast the music video; and (d) purchased the shares in this case under the Defendant’s wife’s name, thereby acquiring pecuniary profits.

According to the evidence duly adopted and examined by the court below, the court below's decision that it is reasonable to view that the defendant received considerable profits from sales after depositing the purchase price of the shares in his wife's name and receiving the share certificates of this case into the securities account opened in his wife's name, and obtained considerable profits from sales, and in light of various circumstances as stated in the court below's decision, such as source of the fund, ownership of sales profits, control and management of the securities account, etc., the defendant's pecuniary profits from the shares of this case was acquired by the defendant, not the defendant's wife. Further, according to the above evidence, the defendant made a majority of the arts programs contributed by the artist prior to the purchase of the shares of this case or music programs broadcasted by the artist, and participated as producer (CP) or producer (CP) after the purchase of the shares of this case, and the defendant did not err in the misapprehension of the legal principles as to the defendant's pecuniary profits from the production of the arts programs of this case, or in the misapprehension of legal principles as alleged in the ground of appeal and finding that there were no errors in the judgment.

Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Yang Sung-tae

Justices Kim Ji-hyung

Justices Jeon Soo-ahn

Justices Yang Chang-soo