Defendant 1 and 1

Defendants

Park Ho-sung

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

Seoul Eastern District Court Decision 2007Ma1631 Decided October 16, 2007

The judgment of the court below is reversed.

Defendant 1 shall be punished by imprisonment for not more than eight months and by a fine not exceeding 1,00,000 won, and by a fine not exceeding 3,00,000 won.

When Defendant 1 fails to pay the above fine, the above Defendant shall be confined in a workhouse for the period calculated by converting 50,000 won into one day.

The fifty-three days of detention days prior to the pronouncement of the original judgment against Defendant 1 shall be included in the above imprisonment.

However, with respect to Defendant 1, the execution of the above imprisonment shall be suspended for two years from the date this judgment becomes final and conclusive.

Defendant 1’s 23,812,890 won shall be additionally collected.

It shall order the provisional payment of an amount equivalent to each of the above fines and penalties.

Of the facts charged in the instant case, the charge of obstruction of the performance of official duties by fraudulent means against Defendant 1 is acquitted.

1. Summary of grounds for appeal;

A. misunderstanding of facts or misunderstanding of legal principles as to the crime of taking property in breach of trust (Defendant 1)

First, at the time of 2003 when Defendant 1 transferred Nonindicted Party 1 to industrial technical personnel service, there was no other applicant who wants to be transferred to the Defendant Company as industrial technical personnel at the time of the transfer to industrial technical personnel service, and Nonindicted Party 1 was fully qualified to be employed as special military personnel, and Defendant 1 did not include Nonindicted Party 1 in order to acquire monetary benefits. Thus, it is difficult to view that Defendant 1’s solicitation to transfer Nonindicted Party 1 to industrial technical personnel service, i.e., to transfer Nonindicted Party

Second, the money that Defendant 1 acquired is not Defendant 1 but Defendant Company's acquisition. Even if a person in charge of another person's business has received an illegal solicitation, the crime of taking property or property in breach of trust is not established if he/she had another person acquire property or property benefits.

Third, since the defendant company received 33 million won from the non-indicted company as a consideration for transfer, not for transfer, and received as a consideration for dispatch, the crime of taking property in breach of trust is not established since it cannot be deemed to have received as a consideration for illegal solicitation.

Nevertheless, the lower court erred by misapprehending the facts or by misapprehending the legal doctrine, thereby adversely affecting the conclusion of the judgment.

B. Legal principles as to the crime of obstruction of performance of official duties by fraudulent means (Defendant 1)

Even if Defendant 1 submitted false explanatory materials as stated in the judgment of the competent director of the regional military manpower office in filing an application for approval for the dispatch to Nonindicted 1, the director of the regional military manpower office may receive them from the insufficient examination of the Military Manpower Administration, and it cannot be viewed as a fraudulent scheme by the above Defendant, and thus, the crime of obstruction of performance of justice is not established. The judgment of the court below which found Defendant 1 guilty of

C. Meritorious legal principles as to the violation of the Military Service Act (Defendants)

First, according to Article 87 (1) of the Enforcement Decree of the Military Service Act, the domestic dispatch period approved by the head of the competent regional office of manpower administration shall be deemed to have engaged in the relevant field of the designated entity. Even if there is a defect in the approval of the dispatch of this case for domestic affairs, so long as the approval of this case is valid, Defendant 1 cannot be deemed to have caused Nonindicted 1 to engage in the relevant field of the designated entity, and in the same purport, Defendant 1 shall not be deemed to have separately

Second, Nonindicted Party 1 started to serve in the Nonindicted Company on January 1, 2004 and obtained the approval for dispatch on February 16, 2004. Even if the Defendant is granted the obligation to notify the notification, Article 40 of the Military Service Act stipulating the obligation to notify the head of the competent regional office of manpower administration within 14 days, if the industrial technical personnel are not engaged in the field belonging to the designated entity at the time of transfer. Thus, it is reasonable to deem that the statute of limitations is in progress from the 14th day after the expiration of the 14th day. Thus, the violation of the Military Service Act due to the nonperformance of notification on personal affairs in

Nevertheless, the lower court erred by misapprehending the legal doctrine that found all of the charges guilty, thereby adversely affecting the conclusion of the judgment.

D. Unreasonable sentencing (defendants)

The sentence imposed by the court below (Defendant 1: Imprisonment of 8 months and fine of 1,00,000, and fine of 3,000,000) is too unreasonable.

2. Determination

A. As to the taking of property in breach of trust among the facts charged against Defendant 1

(1) Whether it constitutes an unlawful solicitation

According to the evidence duly adopted and examined by the court below, Defendant 1, the representative director of the defendant company, did not employ a person for special military service until the Staff of the defendant company in December 2003 because he did not plan to employ a person for special military service in the year 2003. However, on December 2003, Nonindicted 1 and Nonindicted 2, who was an employee of the non-indicted 1, who was an employee of the non-indicted 2, knew of the fact that he still remains in active military service assigned to the defendant company, and upon the request of the non-indicted 1, who was transferred to the non-indicted 1 as an industrial personnel belonging to the defendant company in the form of 2003, was transferred to the non-indicted 1, who was dispatched to the non-indicted company, and the defendant 1, despite the non-indicted 1 did not think that he would have been on duty in the defendant company, may recognize the fact that he continued to work in the non-indicted company without being assigned to the non-indicted 1, who did not meet the purpose of the military service system.

In addition, as seen below, in this case, it is reasonable to evaluate Defendant 1 as acquiring property or pecuniary benefits. As such, the part of Defendant 1’s assertion that Defendant 1 was not an illegal solicitation on the premise that Defendant 1 did not accept a solicitation in order to acquire monetary benefits is not reasonable.

She Whether Defendant 1 can be seen as having acquired property or pecuniary benefits

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 exchange for an illegal solicitation in connection with his/her business. The crime of taking property or property in breach of trust under Article 357 (2) of the same Act is established where a person who administers another person's business obtains property or property benefits from another person, even though he/she received an illegal solicitation in connection with his/her business. It is clear that the crime is not established where the other person, in light of social norms, has the same relation with the person who directly receives property or property benefits from another person, even though the person who administers another person's business received an illegal solicitation in connection with his/her business, or where the other person who received an illegal solicitation acquires property or property benefits from another person's business, or where the other person was responsible for debts to the other person, etc.

According to the records of this case, the non-indicted company may recognize the fact that it paid the development expenses under the joint development agreement and remitted the amount of KRW 33 million to the account of the defendant company, not the defendant 1. However, as long as the defendant company is the representative director of the defendant company and the major shareholder, the defendant 1 is also in a relationship of direct profit-making when the defendant company acquires the property or property profits. Thus, it is reasonable to view that the defendant company's receiving the property or property profits can be evaluated as the same as the defendant 1 receives the property or property profits. Accordingly, the defendant 1's assertion on this part is

Article 13(1) of the Act on the Protection of Civil and Political Parties

According to the evidence duly adopted and examined by the court below, it is reasonable to evaluate that Defendant 1 was paid KRW 33 million for the lawful dispatch of Nonindicted Party 1, not for the receipt of KRW 33,00,000 as the price for the lawful transfer of Nonindicted Party 1, but for the comprehensive consideration for the incorporation of Nonindicted Party 1, who intends to work in the Nonindicted Company, into the form of a formal incorporated company, and then let the Nonindicted Party work in the Nonindicted Company. Therefore, this part of Defendant 1’

B. As to the obstruction of performance of official duties by fraudulent means among the facts charged against Defendant 1

(1) The summary of this part of the facts charged and the judgment of the court below

The summary of this part of the facts charged is that, in collusion with Nonindicted 3, the vice president of the Nonindicted Company, dispatched one employee of the Defendant Company to the Nonindicted Company, and Nonindicted 1, in preparation for detection at the regular inspection of actual conditions of the regional military manpower office having jurisdiction over industrial technical personnel, dispatched to the Nonindicted Company to the Nonindicted Company in order to perform the work of the Defendant Company, the affiliated company, and Nonindicted 3, around January 15, 2004, submitted a false contract for dispatch to the Seoul Regional Military Manpower Office to the Seoul Military Manpower Office for the purpose of jointly developing the project, “from January 15, 2004 to January 14, 2005, Nonindicted 3, who completed the work, submitted a false military service contract for dispatch to the Nonindicted Company, and submitted a false report on the actual inspection of actual conditions of the Defendant Company to the Seoul Regional Military Manpower Office to the Seoul Military Manpower Office to ensure that the requirements for the above special military service were to be paid to the Nonindicted Company 3 and 6,300,000 won.

The lower court found the Defendant guilty of this part of the facts charged by taking account of the following evidence.

[Judgment of Party Members]

In granting authorization or permission upon filing an application, an administrative agency examines and determines whether to grant authorization or permission on the premise that the grounds for filing an application are inconsistent with the facts. Thus, if the administrative agency did not sufficiently confirm the facts, and without properly ascertaining the facts, and it was believed that the grounds for filing a false application or false supporting materials submitted by the applicant are somewhat less reliable, this constitutes an offense of obstruction of performance of official duties by fraudulent means, since it cannot be viewed as due to insufficient examination by the administrative agency (see Supreme Court Decision 87Do2079 delivered on May 10, 198). Thus, even if Defendant 1 and Nonindicted 3 prepared and submitted a false joint development contract with the director of the competent regional military manpower office in making an application for approval of dispatch to Nonindicted 1, the court below erred by misapprehending the legal principles on the facts that the public official in charge did not properly examine the facts of the application, which affected the conclusion of the judgment, and even if it did not affect the remaining grounds for receiving the application, it can be found that the public official in charge did not have any other reasons for receiving the application.

C. As to the Defendants’ violation of the Military Service Act among the charges charged

(1) The summary of this part of the facts charged and the judgment of the court below

The summary of this part of the facts charged is that, when a skilled industrial personnel is transferred to a designated entity at the time of the transfer, the skilled industrial personnel shall be engaged in the corresponding field of the designated entity at the time of the transfer, and when the skilled industrial personnel is not engaged in the corresponding field of the designated entity at the time of the transfer, Defendant 1 shall be notified to the director of the competent regional military manpower office within 14 days from the date of the occurrence of the reason, notwithstanding the fact that, from December 31, 2003 to January 14, 2005, the non-indicted 1 transferred to the non-indicted 1 to the non-indicted company from January 14, 2005, by having the non-indicted 3 be engaged in the "Smia conformity Assessment" work at the quality guarantee group office of the non-indicted company, the skilled industrial personnel shall not be engaged in the corresponding field of the designated entity at the time of the transfer to the designated entity, and as above, the defendant company did not notify the fact to the director of the competent regional military manpower office.

The lower court found the Defendant guilty of this part of the facts charged by taking account of the following evidence.

[Judgment of Party Members]

㈎ 승인을 받은 파견기간(2004. 2. 23.부터 2004. 12. 22.까지)에 대하여

According to Article 87 (1) of the Enforcement Decree of the Military Service Act, when the head of a designated entity intends to apply to technical research personnel and industrial technical personnel service for domestic education and training related to the relevant field and to dispatch them to Korea for the performance of related duties, he/she shall obtain approval from the director of the competent regional military manpower office, along with a copy of the service record sheet. The domestic education and training and domestic dispatch period shall be deemed to have been engaged in the relevant field of the designated entity. Even if there is a defect in the approval for dispatch to Nonindicted Party 1, as long as the approval remains valid, it is reasonable to view that Nonindicted Party 1 was engaged in the relevant field of the designated entity from February 23, 2004 to December 22, 2004, the period for which approval was obtained, and further, Defendant 1 shall not be deemed to have separately liable for notification of personal change for the period

Therefore, even if this part of the facts charged is not a crime, the judgment of the court below convicting this part of the facts charged is erroneous by misapprehending the legal principles, which affected the conclusion of the judgment.

㈏ 나머지 기간에 대하여

위 ㈎항에서 무죄로 판단된 기간을 제외한 나머지 기간은 승인을 받은 파견기간 전인 2003. 12. 31.부터 2004. 2. 22.까지 및 파견기간 후인 2004. 12. 23.부터 2005. 1. 14.까지인바, 먼저 신상이동통보불이행으로 인한 병역법위반의 점에 대한 피고인의 법리오해 주장에 대하여 본다.

Article 40 of the Military Service Act provides that the head of a designated entity shall notify the head of the competent regional military manpower office within 14 days of the transfer of expert research personnel or skilled industrial personnel, if they fail to engage in the field concerned of the designated entity at the time of the transfer of the designated entity. In light of the purport of the provision, the duty of notification on personal changes is not extinguished after the expiration of 14 days as prescribed by the above provision, but the duty of notification on personal changes continues to exist as long as they do not engage in the field concerned of the designated entity at the time of the transfer of the technical research personnel or skilled industrial personnel, and therefore, the term "within 14 days" in the above provision is determined by the period of postponement of the performance of the duty of notification on personal changes, and it is not prescribed in the purport of demanding notification on personal changes only within the said period. Therefore, the statute of limitations on the violation of the duty of notification on personal changes

However, as to the violation of the Military Service Act due to the violation of the duty to engage in duties and the failure to notify personal information during the period from December 31, 2003 to February 22, 2004, the period of secondment of the approved period of service, the public prosecutor may recognize the facts charged on July 27, 2007. Thus, the statute of limitations for the violation of each of the Military Service Act due to the violation of the duty to engage in duties and the failure to notify personal information shall run from February 23, 2004 ( insofar as the new duties were performed with the effective approval of the dispatch, it is reasonable to view that the previous duties and the duty to notify personal information were extinguished). Meanwhile, according to Articles 84(2) and 92(1) of the Military Service Act, the court below erred by misapprehending the legal principles on the statutory punishment of the violation of the Act due to the failure to notify personal information shall be sentenced to imprisonment for not more than 6 months or by a fine not exceeding 20 million won, and the statutory punishment of the violation due to the violation of the statute of limitations for prosecution shall expire.

3. Conclusion

The judgment of the court below is reversed in accordance with Article 364(2) and (6) of the Criminal Procedure Act on the grounds that the defendants' appeal is partially justified, and the judgment of the court below is reversed, and it is again decided as follows after pleading.

Defendant 1 as the representative director of the Defendant Company, which is the laboratory information management system company, supervises the management of each company, such as personnel and fund management of the above company, while the employer of the above company selected as the designated entity for special military service from the Military Manpower Administration to be transferred to the designated entity for special military service in the field of information processing, is a person in charge of overall service management of industrial

(1) The term "industrial technical personnel management system" means the system of alternative military service that provides technical personnel in the field of production and manufacture to a designated entity selected by the Commissioner of the Military Manpower Administration to efficiently utilize the military service resources within the extent that does not interfere with the recruitment of needed persons. (2) Any person transferred to industrial technical personnel service shall faithfully work in the field of the designated entity at the time of transfer. The Military Service Act has several provisions in order to prevent evasion of military service through which the designated entity is assigned to industrial personnel service and voluntarily utilizes the military service resources. (1) The head of the designated entity shall confirm the department in charge of the specific subject and submit an application for transfer to the Military Manpower Administration for approval. (2) The designated entity shall have the industrial personnel management of the designated entity only engage in the field of the designated entity at the time of transfer to the Military Manpower Administration, i.e., production and manufacture related with the license of technical personnel at the time of transfer to the designated entity. (3) The assigned person shall undergo an annual inspection of training, leave, business trip, business trip to the Military Manpower Administration or the head of the same designated entity.

1. The present owner of the defendant;

A. On December 2003, when it was difficult to employ employees due to the poor management of the defendant company, a small-scale company, due to the difficulties in employing employees due to the management of the defendant company, the non-indicted 1, an employee of the non-indicted 1, who was an employee of the non-indicted 1 and the non-indicted 2, the head of the personnel management team of the non-indicted 2, who was the non-indicted 1, who was the non-indicted 1, in Seocho-gu Seoul, Seocho-gu, Seoul, who became an employee of the non-indicted 1, the non-indicted 1, who was an employee of the non-indicted 1, to use the active military service assigned to the defendant company in the year 2003, was transferred to the industrial personnel belonging to the defendant company in the form of the non-indicted 1, and there is no problem in the form of the false joint development contract with the approval of dispatch from the Seoul regional military manpower office, and the development expenses are not paid by the joint development contract.

On or around December 31, 2003, the facts revealed that Nonindicted Party 1 was working in the Nonindicted Company as a skilled industrial personnel of the Defendant Company and would continue to work in the Nonindicted Company, rather than having been aware that Nonindicted Party 1 was working in the Nonindicted Company at the time and continued to work in the Nonindicted Company. However, Nonindicted Party 1 prepared a false application for transfer of industrial technical personnel to the competent Seoul regional military office and submitted the application form for transfer of industrial technical personnel to Nonindicted Party 1 as a skilled industrial personnel of the Defendant Company on the same day and submitted it to the competent Seoul regional military office and made Nonindicted Party 1 be transferred to Nonindicted Party 1 as a skilled industrial personnel of the Defendant Company, and around January 30, 2004, he was transferred KRW 30,000,000,000,000,000,000,000 won, including the wages of the Defendant Company to be paid from Nonindicted Party 1 as the wages of Nonindicted Party 1, thereby acquiring the balance of 23,812,890 won.

(b)in the event that the skilled industrial personnel are designated and assigned to serve in the field concerned of the designated entity at the time of such transfer, and in the event that the skilled industrial personnel are not engaged in the corresponding field of the designated entity at the time of such transfer, the fact shall be notified to the director of the competent regional

From December 23, 2004 to January 14, 2005, Nonindicted Party 1, who is a skilled industrial personnel belonging to the Defendant company, had Nonindicted Party 1, engaged in the “Swea conformity test” business at the office of the Quality Guarantee Group of the Nonindicted Party, upon Nonindicted Party 3’s order, and had the skilled industrial personnel not engage in the field belonging to the designated entity at the time of the transfer. As above, Nonindicted Party 1, while engaged in other business than the designated entity’s field at the time of the transfer, did not notify the head of the competent regional military manpower office of that fact to the Seoul Regional

2. The defendant company

No. 1.(b) As stated in paragraph (b), Defendant 1, an employer of the Defendant, committed the above violations in relation to the Defendant’s duties.

1. Defendant 1’s legal statement

1. The statement concerning the defendant 1 in the prosecutor's office concerning the suspect interrogation protocol;

1. Statement made by the prosecution against Nonindicted 1 and 2

1. Each investigation report (the filing of data related to the dispatch pay for industrial technical personnel, the filing of a new bank account transaction statement that the defendant company received from the non-indicted company, the filing of payment details, such as non-indicted 1 pay, and the binding of the joint development contract)

1. Article relevant to the facts constituting an offense and the selection of punishment;

A. Defendant 1

(1) Violation of trust: Article 357(1) of the Criminal Act (Appointment of Imprisonment)

Article 84(2), and Article 40 (Selection of Imprisonment)

Article 92(1) and Article 39(3) of the Military Service Act

B. Defendant Company

(i)The failure to report personal changes: Articles 96, 84(2), and 40 of the Military Service Act;

Domen Breach of Duty: Articles 96, 92(1), and 39(3) of the Military Service Act

1. Aggravation of concurrent crimes;

A. Defendant 1: The former part of Article 37, Article 38(1)2 and 3, and Article 50 of the Criminal Act (Concurrent punishment as to the violation of the Military Service Act due to breach of trust and nonperformance of notification on personal changes)

(b) Defendant Company: the former part of Article 37, Article 38(1)2, and Article 50 of the Criminal Act (Aggravation of concurrent crimes with the punishment prescribed for the violation of the Military Service Act due to failure to comply with heavy notification on changes in personnel affairs)

1. Discretionary mitigation;

Articles 53 and 55(1)6 of the Criminal Act

1. Detention in a workhouse;

Defendant 1: Articles 70 and 69(2) of the Criminal Act

1. Calculation of days of detention;

Defendant 1: Article 57 of the Criminal Act

1. Suspension of execution;

Defendant 1: Article 62(1) and (2) of the Criminal Act

1. Additional collection:

Article 357(3) of the Criminal Act

1. Order of provisional payment;

Article 334(1) of the Criminal Procedure Act

Although the duty of military service is the most fundamental requirement for the existence of the nation's community, it does not cease to be a stimulious military service doctrine accompanied by the receipt of money and valuables in our society. Therefore, it is necessary to secure the equity in the duty of military service and the effectiveness of the military service system by strictly holding the responsibility for the act of corruption such as this case and the act of receiving money and valuables accompanied thereby.

However, in the case of Defendant 1, it is reasonable to suspend the execution of imprisonment with prison labor for the defendant, in consideration of all the circumstances, such as the fact that the defendant first proposed the crime, that the acquired amount was not used individually, and the nature of the crime and the fact that the crime belong to a relatively easy range when compared with the similar corruption cases of designated entities specialized in military service. The defendant paid in full the fine and the collection charge after the judgment of the first instance court, and reflects his mistake in depth, the defendant is a primary offender without any previous conviction, the circumstances leading up to the crime, the details and result of the crime, the circumstances leading up to the crime, the age of the defendant, character and conduct, and the environment, etc., and thus, the execution of imprisonment with prison labor for the defendant is to be suspended.

In the case of Defendant Company, considering that some of the facts charged are innocent in taking into account the circumstances leading to the crime, the details and result of the crime, and the circumstances after the crime, etc., the sentence of the lower court is deemed to be appropriate, and thus, the same sentence is sentenced as the disposition.

1. Of the facts charged in the instant case, the summary of the obstruction of the performance of official duties by fraudulent means against Defendant 1 is as described above 2.b. (b).B. as seen in the foregoing 2.B. Sheet, this part of the facts charged falls under the time when there is no proof of crime, and thus, is acquitted under the latter part of Article 325

2. 이 사건 공소사실 중 피고인들에 대한 2004. 2. 23.부터 2004. 12. 22.까지 기간에 대한 종사의무위반 및 신상이동통보불이행으로 인한 각 병역법위반의 점의 요지는, 피고인 1은, 2004. 2. 23.경부터 2004. 12. 22.까지 공소외 1이 피고인 회사 소속의 산업기능요원임에도 불구하고 공소외 회사의 품질보증그룹(QA) 사무실에서 공소외 3의 지시를 받아 ‘미들웨어 적합성 테스트’ 업무에 종사하게 함으로써 산업기능요원으로 하여금 편입 당시 지정업체의 해당분야에 종사하지 아니하게 하고, 위와 같이 공소외 1이 편입 당시 지정업체 해당분야가 아닌 다른 업무에 종사함에도 불구하고 관할 서울지방병무청장에게 그 사실을 통보하지 아니하고, 피고인 회사는, 위와 같이 피고인의 고용주인 피고인 1이 피고인의 업무에 관하여 위와 같은 위반행위를 하였다는 것인바, 위 2.다.⑵㈎항에서 살펴본 바와 같이 이 부분 공소사실은 죄가 되지 아니하는 경우에 해당하므로 형사소송법 제325조 전단에 따라 무죄를 선고하여야 할 것이나, 이와 포괄일죄의 관계에 있는 2004. 12. 23. 이후의 각 병역법위반죄를 유죄로 인정한 이상 주문에서 따로 무죄를 선고하지 아니한다.

이 사건 공소사실 중 피고인들에 대한 2003. 12. 31.부터 2004. 2. 22.까지 기간에 대한 종사의무위반 및 신상이동통보불이행으로 인한 각 병역법위반의 점의 요지는, 피고인 1은, 2003. 12. 31.경부터 2004. 2. 22.까지 공소외 1이 피고인 회사 소속의 산업기능요원임에도 불구하고 공소외 회사의 품질보증그룹(QA) 사무실에서 공소외 3의 지시를 받아 ‘미들웨어 적합성 테스트’ 업무에 종사하게 함으로써 산업기능요원으로 하여금 편입 당시 지정업체의 해당분야에 종사하지 아니하게 하고, 위와 같이 공소외 1이 편입 당시 지정업체 해당분야가 아닌 다른 업무에 종사함에도 불구하고 관할 서울지방병무청장에게 그 사실을 통보하지 아니하고, 피고인 회사는, 위와 같이 피고인의 고용주인 피고인 1이 피고인의 업무에 관하여 위와 같은 위반행위를 하였다는 것인바, 위 2.다.⑵㈏항에서 살펴본 바와 같이 이 부분 공소사실은 공소시효가 완성되었을 때에 해당하므로 형사소송법 제326조 제3호 에 의하여 면소를 선고하여야 할 것이나, 이와 포괄일죄의 관계에 있는 2004. 12. 23. 이후의 각 병역법위반죄를 유죄로 인정한 이상 주문에서 따로 면소를 선고하지 아니한다.

Judges Lee Jae-jin (Presiding Judge)