2018No1730 Fraud, Violation of the Act on the Aggravated Punishment, etc. of Specific Crimes

A

Both parties

He/she shall hold office concurrently (public trial) in writing, Kimhae, and Kim Tae-tae.

Law Firm Gyeong, Attorney Park Jong-soo, and Nohyeong

Seoul Central District Court Decision 2017Gohap1256 Decided June 8, 2018

December 5, 2018

All appeals filed by the defendant and prosecutor are dismissed.

1. Summary of grounds for appeal;

A. Defendant (Factual error, misunderstanding of legal principles, and unreasonable sentencing)

1) misunderstanding of facts and misapprehension of legal principles

A) Fraud (Article 2 of the Criminal Act as indicated in the original judgment)

(1) Formation of fraud

① The victim company was entitled to the exclusive domestic sales right for K products according to the arrangements set forth in B; ② D Co., Ltd. (hereinafter “D”) was authorized to sell K products by J Co., Ltd. (hereinafter “J”); thus, the victim company was authorized to dispose of 4,500 K products listed in the facts constituting the crime set forth in paragraph (2) of the lower judgment (hereinafter “instant goods”); even if D did not have the authority to acquire the instant goods from J, it cannot be deemed that D could not be viewed as deceiving the victim company merely because D did not own the instant goods; ③ even if the instant goods were not owned by D, it could not be deemed that the Defendant did not know that there was a dispositive act between D and the head office of the victim, the Defendant did not have any specific statement on the exclusive domestic sales right, and the Defendant could not be seen as having known that there was a causal relationship between D and the victim’s dispositive act, as stated in the lower judgment.

(2) Establishment of co-principals

Since the Defendant was only in charge of practical business affairs related to the sale of the instant goods between D and the victim company, it cannot be deemed that he/she either conspired with B or shared crime through functional control, which shared the commission of the instant fraud.

Nevertheless, the court below erred by misapprehending the legal principles and factual errors in finding guilty of this part of the facts charged.

B) Violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (Article 3 of the Criminal Act in its original judgment)

① On November 15, 2017, the Defendant expressed the existence of KRW 300 million from R in the process of interrogation to the prosecution, and ② the Defendant did not participate in the process of discussions regarding KRW 5 billion in the service cost. The Defendant was not well aware of the content since the agreement on the service cost was not delivered. ③ The Defendant was completely unable to hear about KRW 500 million around April 2016. The Defendant did not participate in the process of reducing the retainer amount to KRW 300 million, ④ the Defendant did not personally receive any benefit with regard to KRW 300 million, ④ the Defendant did not take part in the process of collecting the retainer amount to KRW 300 million, and the Defendant did not make an illegal solicitation to the public officials of the Ministry of Land, Infrastructure and Transport in relation to the designated project (hereinafter “project”), and the Defendant did not request the Ministry of Land, Infrastructure and Transport to deliver the pertinent documents to the Ministry of Land, Infrastructure and Transport, and did not err in the misapprehension of legal principles as to the Defendant’s principal offense and the Defendant’s charge.

2) Unreasonable sentencing

The punishment of the court below against the defendant (the amount of 150 million won for imprisonment for three years and six months, additional collection of 150 million won) is too unreasonable.

(b) An inspection;

The sentence of the court below against the defendant is too unhued and unreasonable.

2. Judgment on the mistake of facts and misapprehension of legal principles by the defendant

(a) Fraud (Article 2 of the Criminal Act as indicated in the original judgment);

1) The judgment of the court below

A) Facts of recognition

(1) Establishment of J’s new projects and D

① Around April 2013, the Defendant, who was an employee of the JM team, planned and promoted a project (hereinafter “the project in this case”) that directly imports products of overseas master brand companies, such as AM (head of the headquarters), AE (head of the team), and K and BE, and sells them through domestic closure sites, home shopping, etc. (hereinafter “the project in this case”). The project in this case is aimed at expanding transactions with overseas headquarters by selling new channels that do not affect the pre-existing Korean brand companies’ sales channels. The objective was to secure the sales authority of all channels and obtain the total sales position (Evidence 2: 1922 pages of evidence records; 5: 4302 pages of evidence records). ② The new project team, as German permanent residents, was 10% of the brand representative director of the European brand company, was able to enter and depart from the new brand company, and 30% of the defendant and the director of the 4% of the new brand company were 1). The new project in this case were 30% of the defendant and the director of the brand.

③ J 신사업팀은 2013. 중반경 이 사건 프로젝트의 일환으로 이탈리아 K 본사로부터 홈쇼핑 전용모델인 숄더백 제품을 직수입하여 판매하기로 기획하였는데, 단독으로 홈쇼핑에서 요구하는 물량 8,000점을 확보할 자금이 없자 피고인은 지인 AF 운영하는 주식회사 AH(이하 'AH'이라 한다)을 위 프로젝트에 참여시켰다. J와 AH은 홈쇼핑 요구 물량 중 5,500점은 J가, 나머지 2,500점은 AH이 각각 대금을 지급하여 수입한 다음 J가 총 물량을 통관시켜 AO을 통해 판매한 후 AH에 수익금을 정산해 주기로 협의하였다.

(2) The reason why goods were sold to the victim company

① 이후 J는 2013. 10.경 AP 법정관리 사태로 위 숄더백의 통관을 진행할 수 없는 상황이 되어, 피고인은 AH 명의로 통관을 시킨 후 D를 통해 홈쇼핑 판매를 진행하는 방안을 구상하여 AM의 결재를 받았다(공판기록 2권 747쪽), AH은 2013. 11. 초순경 J의 물량을 D로 넘겨달라는 피고인의 요청을 받고 2013. 12. 7.경 4,748점, 2014. 2. 2.경 1,712점 등 총 6,460점의 K 숄더백을 통관하여 D에 인도하였다. ② 한편 D는 AO을 통해 K 숄더백에 대한 1차 판매를 진행하였으나 200여점을 판매하는 데 그쳤고, 이에 J 신사업팀과 D는 2014. 1.경 자금력이 있는 다른 업체에 K 숄더백을 판매하는 방안 등을 강구하다가(증거기록 5권 4418쪽), AM의 전결 하에 B의 지인인 AQ에게서 소개받은 피해자 회사에 K 숄더백을 매도하여 2차 홈쇼핑 판매를 맡기기로 계획하였다.

(3) Conclusion of a MOU between D and the victim company

① The director N of the victim company came to know AP in the field of the local transaction in the process of importing a trip from the German brand AR around early 2013. On December 2013, 2013, the victim company’s director N had a plan to directly launch to Korea from the headquarters of Austria, and D’s representative B, as a responsible manager, was in physical color, and had the Korean company’s qualification to obtain K’s domestic sales license to expand its business.

In early 2014, M, the actual operator of N and the victim company, came to meet B through the introduction of Q, and as stated in the judgment of the court below, D has the authority to grant exclusive sales rights to the victim company as the branch office of K headquarters and D, as stated in the judgment of the court below, and the head office stated that the extension should not be made upon the termination of the contract on December 31, 2014, because there are many complaints to AS, the domestic distributor, and that the head office should not be extended upon the termination of the contract.Next, N and M sent L with K on the premise for entering into the domestic exclusive sales contract with L, and presented its sales ability and fund management ability.

③ For these reasons, the instant memorandum of Understanding concluded on February 3, 2014 by D and the Victim Company, along with the purport of referring D and D to the same view, includes: (a) the victim’s total sales contract expires on December 31, 2014; (b) K and the victim’s company considered the possibility of signing the Korean total sales contract; and (c) K and the victim company granted the victim company the right to distribute K products to limited circulation channels, such as home shopping, etc. (Evidence Nos. 59,94). Meanwhile, around January 3, 2014, prior to the conclusion of the said memorandum of Understanding, D and the victim company received and shared the draft of the understanding of understanding with the victim company (Evidence No. 537); and (d) the victim company planned that the Defendant and the victim made a statement to the effect that the Defendant had been able to enter into the instant protocol No. 748, Mar. 7, 2014 with Germany’s permanent residents (Evidence No. 537).

④ While N and M knew that D directly supplied products from K and supplied them to the victim company (i.e.,, without knowledge of the fact that J’s supply of the products kept in its custody as above), they paid KRW 450 million to D on February 13, 2014 through 14, and supplied the instant goods and continued secondary home shopping sales through AO on February 15, 2014. However, since most of the said goods were defective, it was returned to D more than 3,800 out of them, and only KRW 1,000 for travel to be additionally supplied as compensation for damages was not high, the victim company refused to accept them around June 2014, and the remainder of the amount of KRW 450,000 for the above goods and KRW 360,000 was 10,000,0000,000 as personal evidence of the Defendant and the AI account were 30,000,000 won.

(4) Other circumstances

① D는 2014. 3. 31.경 J에, 위 K 숄더백 5,500여 점에 관하여 D가 지출한 통관, 인서트(촬영), 보관 비용 등 합계 약 1억 5,500만 원을 지급한 후 이를 인수해 갈 것을 요청하였고, 이후 J와 D 사이에 2014. 10.경까지 물품 인수와 비용 보전 방식에 관한 구체적인 논의가 이어졌으나 최종적인 합의에 이르지는 못하였다.

② On the other hand, the victim company was expected to be granted the exclusive right to sell K products in Korea from around November 2015, and was aware of the fact that it did not have the expiration of the sales contract from AS, and confirmed that it was the Defendant. Accordingly, "D currently has the authority to sell home shopping and B2B," and from that time, B began at the distance between D and K head office. ③ On November 2014, B and the Defendant requested the return of the price of the said goods, the Defendant knew that B was related to VIP and met B with B, and even thereafter, the Defendant was aware of the fact that B had its own ability to do so, and agreed to grant notarial deeds for damages suffered by the victim company on December 2014, 2015, and repayment was made to M&00,000 won in cash.

④ During the second half of 2016, M sent e-mail to the president of the Italy K headquarters, and asked “D whether it has the authority to designate a monopoly-sale distributor in Korea on behalf of the president of the K headquarters,” and received the negative response (2 right 654 pages of trial record).

B) Specific determination

Degination, which is a requirement for fraud, refers to all affirmative and passive acts that have to comply with each other in the wide sense of trust and good faith in property transaction, and it does not necessarily have to be an essential part of a juristic act, and it is sufficient if it is based on the facts of judgment in order to allow an actor to perform an act of disposal of property he/she wishes by omitting the other party in mistake (see Supreme Court Decision 2009Do7459, Oct. 10, 2009, etc.).

Based on the above legal principles, the court below held that since the defendant and Eul purchased the goods of this case under the premise that D is in a position to grant D's exclusive domestic sales authority over the goods of this case with K's branch office in Korea, it is sufficient to see that the defendant and Eul were deceiving the victim company about the basic facts of judgment for allowing D's disposal of property (this case's awareness of understanding does not impose any legal obligation on D's or defendant). ② The victim company can be seen as not purchasing the goods of this case under the above conditions if it knew that half of the goods of this case were actually owned by J and there was a dispute over the settlement of expenses between D's disposal and D's disposal of the goods of this case, and ③ D's sales of the goods of this case with D's exclusive domestic sales authority, but it did not have the authority to purchase the goods of this case with D's opinion and 50 billion won as a whole without being informed of the above facts.

2) Determination of the immediate deliberation

(1) Formation of fraud

Comprehensively taking account of the evidence duly admitted and examined by the court below and the following circumstances acknowledged by the argument in this case as well as the evidence duly admitted and examined by the court below and the court below's judgment, as shown in paragraph (2) of the crime of this case in the judgment below, D, as a domestic branch of K, may grant the victim company an exclusive right to sell K products in Korea, and D, as if it sells the goods in this case as K's domestic branch, deceiving the victim company as if it were sold the goods in this case, there is causation between the aforementioned deceptive act and the disposal of the victim company, and the defendant who was well aware of such circumstances, has an intention to commit the crime of deception. The judgment of the court below to the same purport is just, and there is no error of law of misunderstanding of facts

1. The instant memorandum of Understanding concluded between D and the victim company around February 3, 2014, shall contain the following (Evidence 1: 94 through 97 pages).

OD represents C (hereinafter referred to as 'K') which is involved in the production, sale and distribution of bamboo products, travel bags, handbags, document bags and liquid books attached with the tradmark in the Italian and all other countries around the world.O L is the representative of the global brand in Korea market, 'L' from Ma which is involved in the production, sale and distribution of various bags, such as document bags, bags, bags, and bags.OK entered into an agreement with one Korean company in relation to the distribution of K products in the Korean market, and this agreement will expire on December 31, 2014, and the following terms and conditions of this agreement will arise in the 2nd meeting of the 2nd meeting of the Republic of Korea and the 1st meeting of the 2nd meeting of the 2nd meeting of the 2nd meeting of the 2nd meeting of the 2nd meeting of the 2nd meeting of the 2nd meeting of the 2nd meeting of the 1st meeting of the 2nd meeting of the Parties.

It may be resolved by one or more arbitration committee members appointed by appropriate procedures in the International Dispute Arbitration Committee located in the Commercial Conference located in Austria, and in the International Dispute Arbitration Committee located in Smuggling.

이 사건 양해각서는 D를 단순히 'K'라고 칭하면서, 과거 한국업체 한 곳과 계약을 맸었었던 'K'('K 본사'를 의미하는 것으로 보이지만, 문언상으로는 'D'를 의미한다고 볼 수도 있다)와 현재 이 사건 양해각서의 체결을 통해 L와 독점 유통협약 체결 가능성을 점검하고 있는 'D'를 모두 'K'로 표시함으로써 'D'와 'K 본사'를 사실상 동일시하고 있다.

① In addition, the instant MOU contains the content that the expiry date of the contract with the domestic distributor of K products on December 31, 2014 and the main contents of the “Modern Distribution Convention with D and L are likely to enter into in the future.” This content is based on the premise that D has the right to participate in the conclusion of the “Domestic Modern Distribution Convention,” which is subject to the premise that D has the right to participate in the conclusion of the “Domestic Modern Distribution Convention,” and is the same as B’s explanation that D has the right to grant the exclusive right to sell to the victim company as a Korean branch.

B. In the event a dispute arises in connection with the distribution agreement contract to be entered into in the future and the MOU of this case, the court located in Italy states that the validity of the MOU of this case is not irrelevant to the K head office.

② As such, the Defendant’s act of participating in the conclusion of this case’s MOU constitutes deception against the victim company, since it is a Korean branch of K headquarters, D is entitled to grant exclusive sales rights to the victim company, and the contract with a domestic distributor is terminated on December 31, 2014. As such, the Defendant’s act of participating in the conclusion of this case’s MOU constitutes deception against the victim company. The Defendant and the defense counsel did not correct the above MOU based on the MOU’s MOU, and did not clearly state the above contents in the intention of deceiving the victim company. However, in light of the above MOU’s MOU’s MOU’s MOU’s 6th understanding, the Defendant and the defense counsel did not know the content of this case’s e-mail recorded in the MOU’s 2nd 6th e-mail branch office (this case’s e-mail, 630,631,737, 1616, 16416).

M is the beginning of this case because D was referred to as K's domestic branch at the court of original judgment. D is not a domestic branch of K, and if it is not possible for the victim company to grant the exclusive sales right of K's products, it stated that D does not have any reason to conclude the memorandum of Understanding of this case and there is no reason to purchase K's products by paying the price to D (2°63,639, 649, 650 of the trial record). In the court of original judgment, N stated that "no reason exists to purchase K's products from D unless the victim company is expected to obtain the exclusive sales right of K's products (2°7 of the trial record)."

In fact, M and N had been aware that they were granted exclusive sales rights of K products from January 1, 2015, and had been engaged in business operations against department stores (No. 2 rights 634, 737 of the trial record), which seems to be due to B’s words that D would be able to grant exclusive sales rights as K’s domestic branch offices, and due to B’s belief of the instant memorandum of understanding containing such contents.

E explained that the victim company should produce its ability through home shopping sales in order for the victim company to be granted the exclusive sales right. From the perspective of the victim company, it appears that the victim company believed that the above request was delivered to the K headquarters's requirements as the domestic branch office, and that if it had not been omitted from such mistake, it would have purchased the instant product from D and not paid its price. Thus, the causal relationship between the defendant and B's act of deception and the act of disposal of the victim company is recognized.

④ Even if D had the intent and ability to grant the victim company the exclusive right to sell K products in Korea, regardless of whether D is a Korean branch, and as a result, J did not assert the ownership of the instant products against the victim company, insofar as D provided a false explanation as D had the authority to grant the exclusive right to sell the instant products as a domestic branch of K, or entered into an MOU with the content of such explanation as if D had the authority to grant the exclusive right to sell the instant products, or if D deceptiond as if D had sold the instant products normally transferred from its head office to the victim company for the purpose of checking the victim company’s ability as a domestic branch, it does not impede the Defendant and B’s deception against the victim company to constitute fraud.

This part of the defendant's assertion is without merit.

(2) Establishment of co-principals

In order to establish a joint principal offender under Article 30 of the Criminal Act, the meaning of joint processing, a subjective requirement.

As an objective requirement, it is necessary to have committed a crime through a functional control over the functional act based on the common intent. Here, the intention of co-processing is insufficient to recognize another person’s crime and to accept it without restraint, and to jointly act as a whole in order to commit a specific criminal act, and to shift one’s own intent by using another’s act (see, e.g., Supreme Court Decision 2002Do7477, Mar. 28, 2003).

On the other hand, since the nature of the co-principal is considered to be functional control by division of roles, the co-principal is distinguishable from each other in that he/she has no control over the functional control by the co-principal (see, e.g., Supreme Court Decisions 88Do1247, Apr. 11, 1989; 2012Do12732, Jan. 10, 2013).

Comprehensively taking account of the evidence duly adopted and examined by the court below and the following circumstances recognized by the argument in this case, the defendant's attendance at the place of concluding the memorandum of Understanding in this case and deceiving D to be able to grant exclusive sales rights to the victim company, and the receipt of goods after selling the goods in this case to the victim company constitutes "share of the execution act" as an act in essence related to the elements of the crime in this case or an act in essence related to the elements of the crime. The defendant's above participation constitutes "a functional control by division of roles which is required for the establishment of the joint principal offender," not only because the defendant's act as an aiding and abetting the principal offender, but also constitutes "a functional control by division of roles which is required for the establishment of the crime in this case." The defendant bears the responsibility for the crime as a joint principal offender with B in relation to the crime in this case. The decision of the court below to the same purport is just,

D was established on October 14, 2013 under the direction of the Defendant and B. The Defendant and B stated that “The Defendant and B had a total of 40% shares above AM, AE, andN (the total of 40%) and that “B is in a partnership with the Defendant” in the court of original instance, “B is in an important relationship with the Defendant. The Defendant is in an important relationship with the Defendant.” The Defendant, as a matter of course, was aware of the Defendant. In fact, the Defendant did not seem to have been unable to operate D without the Defendant.” At the court of original instance, the Defendant and B stated that “the Defendant and B were in a partner position each of their roles,” and that “The Defendant appeared to have been in a substantial relationship with the Defendant in the court of original instance,” and that “B was in a relationship with the Defendant and a person who participated in the operation of BD only in the actual operation of BD (the two rights of trial records, 737, 738 pages), and 58.”

② At the site of entering the hearing of the court below, M expressed D as a domestic branch, and stated that D and K head office were equal to D and Defendant also appeared at the trial (2:30,631 of the trial record), July 27, 2017, and November 22, 2017, “At the time of entering into the hearing of the court below, Defendant was present at the time of entering into the hearing of the court below, and Defendant was able to grant exclusive sales rights to the victim company.” (2:5:1567 of the evidence record, and 4:363 of the evidence record). The Defendant had the right to participate in the trial of the court below in the trial of the court below as evidence No. 97 of the victim’s testimony and evidence No. 97 of the trial record and evidence No. 3633).

This act of the defendant constitutes a sharing of enforcement acts required for the establishment of joint principal offenders.

③ In light of the fact that the Defendant and his wife AI account were used in the monetary movement, and the Defendant personally consumed approximately KRW 85 million, and KRW 85 million, the Defendant’s act of selling the instant goods to the victim company and receiving the price from the victim company constitutes the act of sharing the “act constituting the constituent elements of the instant fraud,” and the Defendant’s act of distributing the goods from the victim company could not be evaluated as aiding and abetting the instant fraud in the absence of the Defendant’s sharing of roles.

This part of the defendant's assertion is without merit.

(b) Violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (Article 3 of the Criminal Crimes in the original judgment);

1) The judgment of the court below

A) Facts of recognition

(1) Conclusion of a consulting service contract with S Village Urban Development Project

① Around February 2016, V, V, B, and the Defendant invited R, which is the land of R, to met with B, which is well aware of G, as the instant project, to go through the “AW of the food house located in Gangnam-gu Seoul, Seoul.” On that spot, R explained on R’s development project, which could be solved by himself/herself. As S Village could be designated as a promotion district, B changed the amount of KRW 5 billion, and R confirmed Q as a matter of decision by Q.

② Around March 2016, Q, R, B, and the Defendant were only in the attorney-at-law office located in Seocho-gu Seoul, Seocho-gu, Seoul. Around 2016, Q agreed that Q, if B and Q start up the employees of the Ministry of Land, Infrastructure and Transport through G, etc., five billion won in consideration of Q and Q, etc.

③ On March 25, 2016, the Defendant prepared a “Agreement on Advisory Services” (Evidence Record 5: 4493 pages) stating that if the news table meeting the size of the S Village Development Project from the Ministry of Land, Infrastructure and Transport to April 15, 2016 confirms the intention to designate a promotion district, P would pay the service cost of KRW 5 billion to B, along with R at the site office of P Co., Ltd. (hereinafter referred to as “P”), which Q and the representative director’s seal was affixed thereon.

(2) Circumstances leading to the receipt of KRW 300 million

① After the conclusion of the above advisory service contract, B was mainly in Germany, and the Defendant took contact between P and B, found P office, received data on the details of the progress of the S Village Development Project, etc., or showed documents to be reported to Qu et al. (No. 166 pages of trial record). B, on April 2016, on the part of Qu et al. and the Defendant, demanded that Qu and R start up to work as public officials of the Ministry of Land, Infrastructure and Transport through Q and R in Seoul, and KRW 50 million under the above advisory service contract. Accordingly, Q agreed to give money to the public officials of the Ministry of Land, Infrastructure and Transport after having come first to contact with B, and R agreed to the amount to be paid to the Defendant as KRW 30 million.

③ Since Q has to prepare KRW 300 million in cash according to the end of the Defendant and B (1:69 pages of trial record). R, on May 17, 2016, sent a bank containing KRW 300 million in cash, and the Defendant was able to be able to become fright upon the Defendant’s request on May 17, 2016, and sent a bank with money to be frighted (1:06 pages of trial record).

(3) The place of use of KRW 300 million

① The Defendant deposited and used KRW 1.95 billion out of the above KRW 300 million into the account in the name of the wife AI and the Mamo AJ (Evidence No. 3129 pages), and deposited KRW 200,000 among them (Evidence No. 3129 pages) into the capital payment of AK [AK and the last change to AL], a corporation established by the Defendant in Germany, which was incorporated in Germany (No. 26,000 won).

② As above, with regard to KRW 1950,000,00 won deposited as above, the Defendant alleged that 50,000 won was 10,000 won which was born to the German immigration funds, and that she also responded to BA’s statutory statement. However, the Defendant received KRW 300,000 from R on May 17, 2016. From that date, the Defendant deposited KRW 19,50,00 in cash with the account of AI and AJ until the 25th day of the same month. The Defendant and AI and AJ did not have any apparent revenue source, and there was no other similar details of transactions before and after the deposit, at the court of the lower court, there was no material where the Defendant stated 300,000 won to the Defendant, and it is difficult to view that 500,000 won was 10,000 won which was written to the Defendant on the 400,000,000 won, as well as 4,000,0.

③ Meanwhile, the Defendant paid KRW 50 million among the above KRW 300 million to M on May 19, 2016 as repayment for the said fraudulent damage, and there is no data to verify the place of use for the remainder of the money.

(4) Relationship B, G, etc. with the Defendant

① In Korea, B established three companies of D, AG, and B (Evidence No. 326 pages of evidence record), the Defendant is involved in the operation thereof after registering himself/herself, AI, and AJ as directors of the said company (D 30%, AG 50%, evidence No. 4917 pages). He/she introduced that the Defendant is a partner of the said company and is in charge of raising funds. In fact, V was engaged in transactions equivalent to KRW 20 million with AG through consultation with the Defendant around 2014 (No. 206 pages of trial record).

② The Defendant, along with B, established AK for the purpose of riding-related consulting business in Germany. In connection with the foregoing business, the plan prepared by the Defendant discussed with B and discussed with B in relation to the foregoing business is referred to as G and Cheong (Evidence No. 33143). Also, in BC connected with the Defendant’s smartphone, text messages (Evidence No. 3338 pages of evidence record) and G and Do and Bas ancillary thereto.

Materials related to the property in the name are stored (Evidence No. 3,158 pages).

③ The Defendant had an excessive relation between B and AC prior to committing the instant act of mediating water, and was also introduced attorneys-at-law through Z, the assistant officer of AC (one right 266 pages of the trial record), and AC’s name was given to the Defendant’s data received from E.

B) Specific determination

In full view of the above facts, the court below determined that the defendant shared the act of performing the act of mediating water in this case through functional control in collusion with B, when considering the following facts: (a) the defendant was present in the Ministry of Land, Infrastructure and Transport where B and Q, etc. were present in the place where the public officials of the Ministry of Land, Infrastructure and Transport were present in the Republic of Korea; and (b) the defendant appears to have been present in the process of S village development project to B, etc. in the course of the prosecutorial investigation; (c) the defendant frequently exchanged with Q, etc. on behalf of B in Germany and Germany; and (d) the defendant was in charge of documents having difficulty in directly performing B; and (c) it is difficult to deem that the role of B was merely assisting the crime of this case, such as by consuming the amount of KRW 300 million received by himself and sharing profits.

2) Determination of the immediate deliberation

Comprehensively taking account of the evidence duly adopted and examined by the court below and the following circumstances recognized by the argument in this case, the defendant's act of directly receiving KRW 300 million from R constitutes "the act of directly receiving KRW 300 million from R constitutes a constituent element of the crime in this case or an act in essence related to the constituent element". At the same time, the defendant's act of taking part in the crime in Germany was required by the person who is in charge of the specific act of committing the crime in this case in Korea and the business relationship between the defendant and the defendant, not only is it an aiding and abetting as a principal offender but also constitutes "functional control through the functional division of roles required for the establishment of the joint principal offender." The judgment of the court below to the same purport is justifiable, and there is no error of law by misunderstanding facts and misunderstanding of legal principles.

(1) The role of the defendant at the conciliation stage

R in the original judgment, “B” mainly stayed in Germany and played a role of communication among the defendants. As such, the defendant grasped the situation on the side of Korea, and delivered and explained data related to the instant project to the effect that he wishes to deliver them to B. The defendant sent documents related to the instant project to the effect that she met us at all times if she met us. The defendant stated to the effect that she was able to get a promise to contact with her. Since she was a working person, she was able to get a contact with her (No. 104, 105, 113, 127), Q27) in the original judgment, she sent 1 to the defendant as necessary for the instant project, she knew that she would come to contact with 104, 105, 106, 306, 160, 206, 206, 306,000,0000,000,000).

B: (2) On March 5, 2016, 2016, when R and the first south used to receive KRW 300,000,000,000 from 10:30,000,000 to 17,000,000, were staying in Germany (the remaining period after B excluding 116,17, 121, 134, 167 of the trial record). As such, the Defendant appeared to have been in charge of the business of this case 3,00,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,00,000,00,00).

③ At the court of the court below, R stated in the purport that “The designated business of the S Village News Foundation was under progress in contact with the Ministry of Land, Infrastructure and Transport, and W first, and sought explanation, etc.” (No. 106 pages of the trial record), and Q made a statement for the same purpose (No. 191 pages of the trial record).

④ According to the agreement with Q, etc., B performed the act of mediating or delivering a solicitation between them and the Ministry of Land, Infrastructure and Transport public officials, and the Defendant made a considerable contribution to having Q, etc. pay the commencement fee in return for good offices by taking charge of practical work handling on behalf of B staying in Germany in the process.

(2) The defendant's role in the process of receiving money

① R은 원심 법정에서 '이 사건 사업에 관하여 피고인과 B에게만 이야기 했다. B은 2016. 3. 25. 독일에 있었기 떄문에 50억 원 용역비 약정서에 Q의 날인을 받아 갈 수 있는 사람은 피고인 뿐이다'라는 취지로 진술하였고(공판기록 1권 121쪽), Q도 원심 법정에서 '2016. 3. 25. 피고인이 용역비 50억 원 약정서 문제로 사무실을 찾아왔고, 나는 도장을 날인하여 피고인에게 주었다' 라고 진술하였다(공판기록 1권 164, 166쪽), 위 진술에 의하면, 2016. 3. 25.경 Q으로부터 용역비 50억 원에 관한 약정서를 받아간 사람은 피고인인 것으로 보인다.

② Around April 2016, the Defendant was present at Q in the position that Q demanded the starting amount of KRW 500 million. R stated at the prosecutor’s office that “it is difficult for the Defendant to pay KRW 500 million.” The amount was so reduced, which was finally decided as KRW 300 million in consultation with the Defendant,” and stated to the effect that “In the court of the lower court, the Defendant sent evidence records 4:589 pages that 300 million may be delivered to the Defendant, and that she talked about accepting it.” (No. 127 of the trial record No. 127 of the trial record) Q made a statement that “The Defendant was aware that she would have received KRW 300 million from the Defendant and would have received KRW 300 million from the Defendant” (No. 1755 of the trial record), and that the Defendant participated in the process of mediating the request to reduce the amount of KRW 350 million in accordance with the above statement and statement as KRW 3500 million.

③ At the court below, R made a statement that “B was forced to deliver money to the Defendant because there was a week or draft that she would change the commencement money in the court below.” (No. 117 pages of the trial record). The prosecutor stated that “The Defendant would have come to her friness, and the Defendant would not be informed.” (Evidence No. 5No. 4173 pages of the evidence record) and Q stated that “The Defendant would be prepared in cash because she would not have any such grounds if she would not come to know.” (No. 176 pages of the trial record). As such, the Defendant participated in a series of processes to receive money from Q, etc., and the crime of this case was committed by giving and receiving KRW 30 million.

(3) Sharing profits with B

The Defendant used KRW 50 million, among the KRW 300 million received from R, to repay the obligation owed to the victim company by the Defendant and D operated by the Defendant and B, and used approximately KRW 20,000 ( KRW 26 million) as capital payment of AK (No. 4, 3686, 3688), which was established by the Defendant and B for the purpose of riding business (No. 3137 of the evidence record) (No. 3137 of the evidence record). As such, the Defendant used the profits acquired from committing the instant crime of mediating acceptance together with B.

This part of the defendant's assertion is without merit.

3. Determination on the grounds of unfair sentencing by both parties

Each of the crimes of this case is a Korean branch of K, and as it is possible for D to exercise the general right to publish information in the Republic of Korea of Italian master brand. As such, D, in collusion with B, deceiving the victim company, defrauding the victim company a total of KRW 48,360,00,00,000, and 300,000,000 won, as it would be possible for S Village to be designated as a promotion district under the pretext of the News Foundation to engage in the solicitation through B, and it is not good to commit the crime. The amount of damage caused by the crime of this case was not recovered in the sum of KRW 48,366,00,00,000, and there was no additional recovery from the trial. The defendant was remarkably damaged the social trust in terms of fairness and purchase of duties performed by the public official due to the crime of this case. Moreover, the defendant shared the profits acquired by the crime of this case as the accomplice B and the accomplice, who was the accomplice B, was involved in Q Q.

However, the Defendant merely delivered documents in accordance with the direction of B, the principal offender, and received retainers, and did not appear to have planned and implemented the crime of aiding and abettings in the instant case. Despite solicitation and arrangement regarding the crime of aiding and abettings in the instant case, S Village was not designated as a promotion district. The Defendant did not have any record of punishment except for those subject to punishment once as a fine for the crime of this species. These points are favorable to the Defendant.

In addition, comprehensively taking account of the following circumstances, such as the Defendant’s age, character and conduct, environment, family relationship, motive for committing a crime, means and method of committing a crime, and circumstances after committing a crime, etc., the lower court’s punishment against the Defendant cannot be deemed to be too minor or unreasonable.

The defendant and prosecutor's assertion of unreasonable sentencing is without merit.

4. Conclusion

Since the appeal filed by the defendant and the prosecutor is groundless, all of them are dismissed in accordance with Article 364 (4) of the Criminal Procedure Act. It is so decided as per Disposition.

The presiding judge shall be appointed and appointed concurrently.

Judges Kim Jae-sung

Judge Park Sung-sung