2012Gohap1377 Violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Misappropriation)

Title of the crime: Occupational Breach of Trust, Occupational Breach of Trust

Executive officers of a construction company

Lee Jong-chul (Court) (Court of Second Instance), Lee Jong-chul, Kim Jong-soo, Kim Jong-soo (Court of Second Instance)

Attorney Park Ho-ho, Mai-ho, Maho-ho

Attorney Cho Chang-chul and Yoo

May 24, 2013

A defendant shall be punished by imprisonment for one year.

Criminal facts

1. Status of the defendant, etc.

From January 2010, the defendant has been working as the head of the headquarters for civil engineering projects of the above company that oversees the overall affairs of civil engineering projects, such as orders for construction works, design, process, construction management such as cost, quality, evaluation of subcontractors, etc. in connection with civil engineering projects performed by the treatment and construction of the dispute settlement center (hereinafter referred to as "treatment construction").

한편, 조■■(현재 대구지방법원 제1심 재판 계속 중)는 2007. 11.경부터 2009. 12.경까지 위 토목사업본부의 본부장으로 근무하였고, 박■■(대구지방법원에서 2012.10. 17. 징역 10월 선고, 현재 항소심 계속 중)은 2007. 1.경부터 2009. 12.경까지 위 토목사업본부의 기획, 인사, 총무 업무를 담당하는 토목사업기획팀장으로 근무하면서 조■의 지시에 따라 비자금을 관리하였으며, 최■(대구지방법원에서 2012. 10. 17. 징역 10월 선고, 현재 항소심 계속 중)은 2010. 1.경부터 2010. 12. 중순경까지, 이■림(대구지방법원에서 2012. 10. 17. 징역 10월에 집행유예 2년 선고 확정)은 2010. 12. 중순경부터 2011. 12.경까지 각 공사현장 관리 및 지원 업무를 담당하는 위 토목사업본부의 토목CM기술팀장으로 근무하면서 피고인의 지시에 따라 비자금을 관리하였고, 김환은 2007. 12.경부터 2010. 6.경까지, 김■철은 2010. 7.경부터 현재까지 대우건설 외주구매본부 토목외주팀장으로 근무하면서 하도급업체의 선정 및 하도급계약 체결 업무를 담당하였다.

2. Public offering relations;

The Defendant received rebates from subcontractors and designing and investigating companies by means of softening the costs of subcontracting and design and research services, and raised funds for the purpose of using the amount of unregistered money for illegal street funds.

한편, 피고인의 전임자인 조■■는 박■■에게 비자금 조성에 따른 업무처리를 지시하는 동시에 박■■을 통하여 위 외주구매본부 토목외주팀장 김■환에게는 하도급업체와 리베이트 약정을 전제로 한 하도급계약을 체결해 줄 것을 요청하고, 수주 담당 총 괄임원(SBM, Strategic Business Manager) 및 위 토목사업본부 토목기술팀 소속 설계책임자(EPM, Engineering Project Manager)에게는 설계·조사업체와 리베이트 약정을 전제로 한 설계·조사 용역계약을 체결할 것을 지시하였다.

그 후 대우건설의 토목사업본부장으로 부임한 피고인은 순차로 최■, 이림으로부터 기존에 이루어진 위 리베이트 약정을 보고받고 그들에게 위 리베이트 약정에 따른 잔여 리베이트를 수수할 것을 지시하는 한편, 최■, 이■림 및 수주 담당 총괄임원, 설계책임자에게 추가로 하도급업체 및 설계·조사업체와 리베이트를 약정하여 비자금을 조성할 것을 지시하고, 최■, 이■림을 통하여 김■환, 김■철에게 하도급업체와 추가 리베이트 약정을 전제로 한 하도급계약 체결을 요청하고, 박■■, 최■ ,이■림,김■환, 김■철 및 수주 담당 총괄임원, 설계책임자들은 위 지시 또는 요청을 승낙함으로써 비자금 조성 등을 모의하였다.

이에 따라 김■환, 김■철 및 수주 담당 총괄임원, 설계책임자들은 하도급업체 및 설계·조사업체와 리베이트 약정을 전제로 하도급계약 및 설계·조사 용역계약을 체결한 후 이를 박 .최 , 림 에게 통보하는 한편, 박■■은 최■에게, 최■은 이■림에게 순차로 비자금 관리 업무를 인계하고, 최■, 이■림은 피고인의 지시에 따라 하도급업체 및 설계·조사업체에 대하여 약정된 내용대로 리베이트를 요구하고 수수하여 비자금을 조성, 관리 하면서 이를 사용하기로 하였다.

3. Occupational breach of trust;

(a) Occupational duties;

피고인 및 조■■, 박■■, 최■, 이■림과 수주 담당 총괄임원, 설계책임자들은 피해자 대우건설의 토목사업 전반에 관한 업무를 총괄하는 토목사업본부 임직원이므로 선량한 관리자로서 위 회사의 이익을 도모해야 하고 투입 단가, 수량, 적정 이익 등을 객관적으로 산출하여 적정 대금으로 계약을 체결하고 기성을 정당하게 검수함으로써 하도급 공사대금 및 설계·조사 용역비 등 법인 경비가 부당하게 과다 지급되지 않도록 해야 할 업무상 임무가 있으며, 김■환, 김■철 역시 하도급계약 체결을 담당하는 외주구매본부 임직원으로서 위와 같은 업무상 임무가 있음에도, 그 임무에 위배하여 아래와 같은 범행을 범하였다.

(b) Violating duties;

1) Acceptance of rebates under the existing agreement

A) Regarding subcontracting

피고인은 2010. 1.경부터 2011. 8.경까지 전임 토목사업본부장인 조■■의 지시에 따라 외주구매본부 토목외주팀장 김■환을 통하여 하도급 공사대금을 부풀려 리베이트를 받기로 하는 약정이 이루어진 후 이를 인계받아 최■, 이■림을 통하여 6개 공

In relation to the company, in order to use the amount of money in the use of illegal street funds for the number of stocks for the internship project from five subcontractors, the amount of money in the form of rebates has been received.

B) relating to design and research services

피고인은 2010. 1.경부터 2011. 5.경까지 전임 토목사업본부장인 조■■에 의하여 설계 및 지반조사 용역비를 부풀려 리베이트를 받기로 하는 약정이 이루어진 후 이를 인계받아 최■, 이■림을 통하여 14개 공사와 관련하여 설계업체 및 지반조사업체로부터 턴키공사 수주를 위한 불법 로비자금 용도로 사용하기 위하여 액수 미상의 금원을 리베이트 명목으로 교부받았다.

2) Acceptance of rebates under an additional agreement

A) Regarding subcontracting

From May 2010 to December 201, the Defendant agreed to receive rebates for the payment of subcontract price, and had the head of the team outside the civil engineering headquarters at the headquarters for the purchase of the outer housing (hereinafter “Emblance”) enter into a subcontract by reflecting the rebates agreement, and had the head of the team outside the civil engineering headquarters (hereinafter “Emblance”) enter into the subcontract after July 2010, and received a rebates in an amount as a pretext in order to use the amount for the illegal use of the funds for the purchase of kidton construction from seven subcontractors, such as the largest supervisory agency, and the competent supervisory agency, in relation to the 111 construction works through the forest, the amount of money was received as rebates in order to use it for the illegal use of the funds for the kidton construction project.

B) relating to design and research services

The Defendant, from April 201 to September 201, agreed to receive rebates for design and ground investigation service costs relating to nine construction works from around September 201, 201, and received the amount of money in the name of rebates from the design firm and ground investigation firm to use it for the purpose of illegal waterway funds for the internship work through this investigation agency.

C. Sub-decision

이로써 피고인은 조■■, 박■■, 최■, 이■림, 김■환, 김■철 및 수주 담당 총괄임원, 설계책임자들과 순차 공모하여 액수 미상의 재산상 이익을 취득하고, 피해자 회사에 같은 액수에 해당하는 재산상 손해를 가하였다.

4. Receiving property in breach of trust;

(a) Duties;

토목공사의 관리 등 대우건설의 토목사업 전반에 관한 업무를 총괄하는 토목사업본부 임직원인 피고인과 조■■, 박■■, 최■, 이■림 및 하도급업체 선정과 하도급계약 체결을 담당하는 위 회사 외주구매본부 임직원인 김■환은 하도급업체의 신용도 평가, 시공능력 등을 고려하여 공정하게 업무를 처리하여야 하고, 하도급계약 체결 및 공사 진행 등 업무 처리와 관련하여 하도급업체 등 업무 관련자로부터 어떠한 형태의 금전적 이익도 제공받아서는 안 될 임무가 있다.

그럼에도 피고인, 조■■, 박■■, 최■, 이■림, 김■환은 순차 공모하여, 하도급업체들이 하도급계약 및 공사관리 등에 관한 대우건설 토목사업본부 및 외주구매본부의 업무에 따라 매출이 좌우되어 영향을 받는 종속적 지위에 있음을 이용하여 타인의 사무를 처리하는 자로서 그 임무에 관하여 부정한 청탁을 받고 아래와 같은 범행을 범하였다.나, 금품 수수

1) Around May 2008, Daewoo Construction Co., Ltd. requested the subcontracting of the construction of Yongcheon Radon Golf Course at the headquarters for the purchase of Daewoo Construction Co., Ltd.

이를 기화로 당시 대우건설 토목사업본부장인 조■■는 2008.5.경 박■■에게 지시하여 그를 통해 서울 종로구 신문로 1가 57에 있는 대우건설 토목사업본부 사무실에서 백욱재에게 "영천 레이포드 골프장 공사를 하도급주고 그 공사대금을 올려줄 테니 20억 원의 리베이트를 달라"라고 요구하였고, 그 무렵 백욱재는 이를 승낙함으로써 하도급계약의 체결 및 공사 진행 편의 제공 등을 청탁하였다. 이에 따라 조■■는 박■■을 통해 위 외주구매본부 토목외주팀장 김■환에게 요청하여 ㈜성보 00가 2008. 8.경 대우건설로부터 위 공사를 하도급 받도록 하였고, 피고인은 2010. 1.경 대우건설 토목사업본부장으로 부임한 후 박■■의 후임 비자금 관리자인 최■으로부터 위 리베이트 약정 내용을 보고받음으로써 이를 인계받았다. 그 후 피고인은 최■, 이■림에게 순차적으로 위 약정대로 리베이트를 수수할 것을 지시하여, 2010. 2.경부터 2011. 4.경까지 백욱재의 지시를 받은 성보00 이사 조민구로부터 위 대우건설건물 지하주차장 등에서 최■, 이■림은 턴키공사 수주를 위한 불법 로비자금 용도로 사용하기 위하여 액수 미상의 금원을 리베이트 명목으로 교부받아 이를 취득하였다.

2) On August 2010, the company-invested financial holding company in accordance with the additional agreement was awarded a subcontract for the construction of a new industrial complex in a short term, which was sub-construction. Accordingly, on or around August 2010, the Defendant demanded that, by ordering the maximum supervisory agency to build the new industrial complex, the company-invested financial holding company in the above treatment construction project headquarters office, the Defendant, through which he requested implied administrative agency in charge of the above treatment construction project headquarters, “the company-invested financial holding company in the above treatment construction project headquarters to grant rebates of KRW 500 million to the company to pay the construction cost in the process of changing the subcontract agreement of the above construction.” At that time, the administrative agency in charge of the transmitted administrative agency requested the offering of the future subcontract and the convenience in the progress of construction. Accordingly, the maximum administrative agency received and acquired the amount of the unregistered money under the pretext of rebates in order to use it for the illegal use of the funds for internship construction from implied.

In addition, from August 2010 to August 201, 201, the Defendant received and acquired each amount of money from three subcontractors as rebates in order to use it for illegal street funds to receive internship works from three subcontractors in relation to three projects through this investigation agency.

Summary of Evidence

1. Partial statement of the defendant;

1. 증인 박■■, 최■, 이림, 최명수의 각 법정진술

1. Part of the legal statement among the witnesses designated by the witness, Kim Yong-woo, Seowon, and Park Chang-gu;

1. In the third trial records, each part of the silent and Kim Dong-kin confession of a witness;

1. Part of the statement made by a witness even though it has been closed in the fourth trial record;

1. A copy of each prosecutor's protocol of interrogation of the suspect as to whether he/she has been appointed, among others, a White-gu, Kim Jae-gu, Kim Jae-gu, a key net attitude, sent, sent, Park Nam-nam, the highest scarb, scarf, scarf, scarf, fin

1. 이■림, 박■■, 최■, 박창근, 김■환, 김두현, 김용우, 조영기, 김■ 철, 염사훈, 이정완, 최상운, 강대진, 김기현, 한치운, 노진석, 김연우, 표상노, 김동백, 강해진, 전욱, 이동하, 김종성, 천호영, 이종용, 김성희, 김석준, 김명훈, 박명수, 장성순, 이욱한, 김석기, 사상호, 황은석, 김주현, 김동해, 김혁수, 정승용, 최정식, 김용진, 박광준, 이승련, 김일수, 이종태, 한녹희, 최명수, 서해창, 조경식, 전홍건, 김홍태, 심상준, 임동 탁, 하성호, 김경태, 추석연, 김영진, 김상현, 김만덕, 전찬석, 정희용, 이병로, 방윤석, 이기승, 곽대진, 신기원, 정남수, 최영주, 장성욱, 권원구, 이인용, 신병관, 오세준, 오성진, 이상규, 백승복, 채종기, 류희구, 정훈, 김덕규, 최우재, 최기식, 신용우, 정병권, 송재홍, 류현걸, 김기철, 김문주, 한정식, 염재성, 김교훈, 한경달, 심성섭, 주현종, 황재덕, 이종호, 임종선, 이상진, 류균헌, 김호상, 서창범, 함종철에 대한 각 검찰 진술조서 사본

1. A copy of each written statement of Kim Sung-ho, Park Jong-sik, Lee Dong-sik, Kim Dong-dong, Park Jong-sung, Kim Jong-sung, Park Jong-hun, Kim Il-hun, Lee In-bok, Lee In-bok, and Lee In-bok;

1. Copies of each investigation report;

1. A copy of the old construction subcontract and a copy of the old construction subcontract;

Application of Statutes

1. Article applicable to criminal facts;

Articles 356, 355(2), and 30 of the Criminal Act (with regard to the occupation of occupational breach of trust, inclusive) and Articles 357(1) and 30 of the Criminal Act (with regard to the occupation of occupational breach of trust and the occupation of occupational breach of trust, each of them shall be subject to imprisonment)

1. Aggravation for concurrent crimes;

Articles 37 (former part), 38 (1) 2, and 50 of the Criminal Act

1. Determination on additional collection of the crime of taking property in breach of trust

As stated in the facts of the crime of the judgment, since the amount of rebates received from the subcontractor cannot be specified in order to use it for the illegal use of the funds for the purpose of receiving the order of the internship construction, it shall not be collected from the defendant. Determination of the defendant and his defense counsel's assertion

1. The point of occupational breach of trust in judgment

A. Summary of the assertion

The defendant and his defense counsel (hereinafter referred to as the "defense counsel") did not raise funds for the construction of treatment instead of raising funds for the personal interest of the defendant or a third party, and actually used funds for the construction of treatment (hereinafter referred to as the "non-funds of this case") ( even if some of the funds of this case were illegal in executing the part of the funds of this case at the expense of the Circuit, it is not for the defendant, but for the company). The defendant did not have the intention of unlawful acquisition. The defendant asserted that even if the intention of unlawful acquisition of the defendant of family affairs is recognized, since it constitutes a case in which the value of the financial interest of this case cannot be calculated, it constitutes a crime of occupational breach of trust which has acquired the amount of non-financial interest.

B. Whether there exists an intention of unlawful acquisition

1) Relevant legal principles

The crime of occupational breach of trust is established when a person administering another's business obtains pecuniary advantage or causes a third party to obtain such benefit by an act in violation of one's duty, thereby causing loss to the principal. The term "act in violation of one's duty" means the content and nature

In light of the specific circumstances, the crime of breach of trust is established by either failing to perform an act that is naturally expected or expecting not to perform as a matter of course under the statutory provisions, contractual terms, or good faith principle, and even if an actor committed an act with a will to act for the principal’s family, if the intent and purpose of the act is unlawful and cannot be accepted as an act contrary to statutes or social rules, and even if the outcome of the act is partly against the principal, it does not affect the establishment of the crime of breach of trust (see, e.g., Supreme Court Decision 2002Do1696, Jul. 22, 2002).

In addition, since a company should not be a means to commit a criminal offense in the course of its business activities, the provisions of the law that prohibit offering of a bribe must be observed in the course of its business activities. Therefore, if a director, etc. of a company delivers a bribe with funds of a company in violation of his/her duties in the course of its business activities, it is reasonable to deem that the offering of a bribe was conducted for the purpose of pursuing the benefit of the other party to the offering of a bribe or for any other purpose instead of seeking the benefit of the company (see, e.g., Supreme Court Decision 2011Do92

2) Determination

Based on the above legal principles, according to each evidence in the summary of the evidence mentioned above, the defendant's act of raising and managing the funds of this case to use some of the funds of this case for the illegal purpose of obtaining orders from Circuit Corporation as stated in the facts constituting the crime in the judgment of the court below, and there is no evidence to acknowledge that the Construction of Treatment Construction was aware of the illegal purpose, and there is no evidence to acknowledge that the defendant's act of raising and managing the funds for the above illegal purpose constitutes the crime of occupational breach of trust, since the defendant's act of raising the funds for the above illegal purpose itself is an act of disregarding a fiduciary relationship with the Treatment Construction, and thereby intentionally realizing the intent of obtaining illegal acquisition. Further, the defense counsel also recognizes that part of the funds of this case is the amount of the funds of this case with the illegal solicitation in relation to design evaluation to the review committee members (hereinafter referred to as the "review committee members"). Thus, the above disbursement is in itself constituting an illegal criminal act, and therefore it is impossible to view it as an act for the above purpose.

Therefore, with respect to the portion of the non-funds created to use it for the purpose of illegal acquisition of the order of the Kton Construction among the non-funds of this case, the intention of illegal acquisition is recognized, and with respect to the non-funds created for the purpose of using it for other purpose, the intention of illegal acquisition is not recognized, as seen below.

(c) Value computation of proprietary interests;

1) Determination as to the scope of illegal waterway funds for the orders issued by the Kitton Corporation

A) Prosecutor and defense counsel’s assertion

The prosecutor argues that all money and valuables (hereinafter referred to as "prior activity expenses") provided to the candidates for the multiple reviewing committee members before the appointment of the review committee members in the order of the Circuit Corporation is also illegal cost for the order of the Circuit Corporation, and the defense counsel asserts that they constitute a normal promotional activity activity expense.

B) Determination

According to the evidence duly adopted and examined by the court, ① the number of candidates appears to be not to be a significant number of the examination committee members (at least 1,50 persons are asserted as the number of the examination committee members), but the number of persons selected as the final examination committee members is to be less than a small number, and when the disbursement of active expenses is conducted from the examination committee to the prior examination committee members, the defendant's side provides the examination committee members with the same meal and merchandise coupons, golf equipment, etc. (at least 400,000 won per person). Considering the number of the examination committee members and the number of the examination committee members actually selected as the committee members, it is difficult to view the aforementioned prior disbursement expenses to increase the possibility that the above candidates can become the committee members, and it is difficult to view the prior disbursement expenses to be illegal from the 3rd examination committee's prior examination committee's 10th examination committee's 20th examination committee's 10th examination committee's 20th examination committee's 20 examination committee's 20 examination committee's 3.

2) Determination on whether to compute the value of property gains

In full view of the above determination as to the scope of illegal waterway funds for orders issued by the Kton Corporation, it is only 250 million won when calculating the above illegal waterway funds that were paid during the period of Defendant’s employment by the data submitted by the Prosecutor’s Office based on the above determination, and the amount paid for purposes other than the above illegal waterway funds appears to have been used for the interest of treatment construction rather than the Defendant’s individual interest, as seen below in the determination as to the portion of innocence, and the act of raising funds for the purpose of illegal use is punishable as occupational breach of trust. However, it is impossible to determine the scope of the illegal funds raised by the Defendant for the purpose of illegal use of the same amount among the funds of this case, so this case constitutes a case where the value of the pecuniary interest that the Defendant acquired by occupational breach of trust cannot be calculated specifically. In such a case, the value of pecuniary interest cannot be calculated as a violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (see, e.g., Supreme Court Decision 201Do1315, Jan. 31, 2013).

C. Sub-committee

Therefore, the above assertion by the defense counsel is justified within the above scope of recognition.

2. The point of taking property in breach of trust;

(a) Illegal solicitation;

1) Summary of the assertion

The defense counsel asserts that there is no illegal solicitation from subcontractors, and that there is only cooperation in the creation of treatment construction funds by way of returning the construction cost that subcontractors received in excess of treatment construction.

2) Determination

A) 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 person's business obtains property or pecuniary benefits in return for an illegal solicitation as to his/her duties. The "illegal solicitation" here does not necessarily require that it constitutes the substance of occupational breach of trust, and is contrary to social rules or the principle of good faith.

In determining this, it is sufficient to consider the contents of the solicitation, the amount of the consideration related thereto, the form, and the integrity of the transaction, which are protected by the law, in a comprehensive manner. It does not necessarily require that the solicitation is explicitly made (see, e.g., Supreme Court Decision 2008Do6987, Dec. 11, 2008).

B) According to the evidence duly adopted and examined by this court, the following facts can be acknowledged.

(1) The headquarters for treatment and construction works shall take charge of managing orders for civil engineering works and sites for construction works, and the headquarters for outsourcing purchase shall take charge of domestic and overseas procurement, procurement, selection of subcontractors, contracts, management, etc.

(2) A method in which a subcontractor receives construction contracts from treatment construction requires a negotiated contract and a competitive bidding; in the case of a competitive bidding, only an enterprise designated for treatment construction is entitled to participate in the bidding, as well as a structure in which the subcontractor can participate in the bidding.

(3) If the highest collaborative company for treatment and construction works is the highest collaborative company, one construction project may be awarded in the form of a negotiated contract for the consideration thereof, and the bidding participants may participate in the bidding process subject to the designation of treatment and construction. As such, not only the Ministry of Foreign Affairs and Trade selecting a subcontractor but also the Ministry of Foreign Affairs and Trade which evaluates a subcontractor and delivers the result to the Ministry of Foreign Affairs and Trade, upon contact with a usual subcontractor, has considerable influence on the order of construction works of a subcontractor.

④ (주)성보00 이사 백■■, ■■기업㈜ 전무 송■묵, ■■건설산업㈜) 대표이사 |백의 수사기관에서의 진술 및 법정에서의 증언 내용을 요약하면, '리베이트 요구에 응하지 않으면 공사진행 과정에 있어 기성금 수령에 지장이 있거나 실제 투입한 공사대금을 제대로 인정받지 못하는 등 각종 제한이 따를 수 있고, 무엇보다 향후 수의계약을 포함하여 공사를 수주받는 데 불이익이 있을 수 있다'라는 것이다.

다) 위 인정사실에 의하면, 하도급업체들은 피고인 측에게 리베이트를 지급하면서 적어도 묵시적으로 하도급계약의 체결 및 공사진행의 편의제공 등에 대한 부정한 청탁을 한 것으로 인정할 수 있고, 이러한 내용의 청탁은 사회상규와 신의성실의 원칙에 반하는 것으로서 배임수재죄의 부정한 청탁에 해당한다(백■■, 송■묵, ■■백은 수사기관에서와 달리 이 법정에서는 리베이트를 제공하면서 입찰지명, 수의계약체결, 공사편의 등을 청탁하지 않았다는 취지로도 증언한바 있기는 하나, 하도급업체들도 리베이트로 제공할 자금을 마련하기 위하여 비자금을 조성한 점, 공사진행이나 수주 등에 특별한 불이익이 예상되지 않음에도 위험을 감수하고 비자금을 조성하여 대우건설의 리베이트 제공 요구에 협조할 이유를 찾아볼 수 없는 점 등에 비추어보면, 백■■ 송■묵, ■■백의 위 부분 진술은 선뜻 믿기 어렵다).

Therefore, the above assertion by the defense counsel is without merit.

(b) Acquisition of property or proprietary profits;

1) Summary of the assertion

The defense counsel argues that the defendant's approval of the raising of non-financial resources and approval of the use of non-financial resources is only limited to the approval of the use of non-financial resources, and the ownership of non-financial resources is treated construction, and the defendant does not have the right to independent disposal of non-financial resources, so it cannot be viewed that the defendant acquired property

2) Determination

A) According to the evidence duly adopted and examined by this court, the following facts can be acknowledged.

① This investigation agency, according to the Defendant’s instruction and approval, consulted with the company and the head of the headquarters about the amount of rebates (1st 1242 pages of investigation records), and directly reported the entry of funds to the head of the headquarters (1st 3169 pages of investigation records). The statement was made to the effect that money would not take place without the head’s instruction or approval (4370 pages to 4375 pages of investigation records).

In this Court, this Court testified to the effect that, in accordance with the Defendant’s instruction and approval, the money to be left to officers was received rebates from the subcontractor, and managed and executed the funds. The Defendant directly instructed that the money to be left to officers would be anywhere, and the other expenses would have been reported on a regular basis, and that the remainder was approved. The amount and usage of the expenses of the head of the headquarters and the head of the headquarters, the event expenses, and other expenses were determined by the Defendant.

③ 최은 수사기관에서 '비자금을 어디에 사용하든지 사전에 피고인에게 보고하고 허가를 받아서 집행하였으며, 박■■으로부터 인계받아 집행한 턴키공사 심의위원들에게 주는 돈 역시 피고인의 허가를 받아서 집행하였다(수사기록 1책 2679쪽)'(수사기록 1책 2701쪽)라고 진술하였다.

④ In this court, the maximum number of administrative agencies, in compliance with the Defendant’s instruction and approval, received rebates from the collaborative companies, and managed and executed the funds. The amount and usage of the funds, such as the expense for obtaining orders from the Kton Corporation and the head of headquarters’s activity expenses, event expenses, etc., was executed as it is for the part that has been under customary practice, and the Defendant decided on the non-permanent event expenses. The Defendant testified that the use and amount of the funds was reported to the Defendant and obtained approval for the use.

B) According to the above facts, it is reasonable to view that the defendant has the right to dispose of the amount acquired in the position of the actual owner with respect to the amount acquired in order to use the amount acquired for the purpose of illegal waterway funds for the order of order of order of order of the Track Construction as stated in the facts constituting the crime of occupational breach of trust (the amount of the amount acquired to use it for the purpose of illegal waterway funds for the order of order of the Track Construction is not specified is the same as in the judgment on the above crime of occupational breach of trust, and the amount acquired to use it for the purpose other than the above illegal waterway funds is not established in the judgment on the

3) Sub-decisions

Therefore, the above assertion by the defense counsel is justified within the above scope of recognition.

1. Reasons for sentencing: Imprisonment with prison labor for one month to 15 years;

2. Scope of recommended sentences according to the sentencing criteria;

(a) Sentencing Criteria for occupational breach of trust;

【Determination of Punishment】

Embezzlement and Misappropriation of less than KRW 100 million

[Special Aggravations] - Aggravations: Where the method of commission of crime is very poor.

- Reduction Elements: Non-Mitigation of Punishment

【Determination of Recommendation Area】

Basic Area

[Scope of Recommendation] April to April 1st

[General Convicts] - Reductions: No record of criminal punishment

B. Since there is each crime of taking occupational breach of trust for which the sentencing criteria for the recommended area has not been set according to the standards for handling multiple crimes, the lower limit shall be based on the lower limit of the range of sentence according to the sentencing criteria for the crime of occupational breach of trust for

[Scope of Final Recommendation] From April to April 1 + A

3. Determination of sentence: In light of the fact that the Defendant received rebates from a subcontractor and a designing and investigating company to use it for illegal street funds for the purpose of obtaining orders for internship construction works, and the nature of the crime is not less than that of the crime, and the Defendant had ultimate power to make a decision on the raising and use of the aforementioned funds, it is inevitable to punish the Defendant with severe penalty equivalent thereto.

However, considering the favorable circumstances, such as the fact that the defendant has no previous conviction, the fact that the crime is established only for the amount that is not yet known to the defendant, the fact that treatment construction, which is the victim, wants the defendant's wife, and that the defendant reflects his fault in depth, and other factors of sentencing specified in the records and arguments of this case, the punishment shall be determined within the scope of the punishment as ordered by the order.

Parts of innocence

1. Summary of the facts charged

A. Status of the defendant

The facts constituting the crime of this case are as shown in the judgment.

(b) Public offering relationship;

The Defendant: (a) received rebates from subcontractors and design/survey companies by means of softening the costs of subcontracting and design/survey services; and (b) received rebates from them; and (c) received it from them to arbitrarily use it for the purpose of using it, such as prior activity expenses (excluding the use of illegal street funds for the owner of the internship works); and (d) as stated in paragraph (2) of the facts constituting the crime in the judgment.

(c) Violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes

(i) occupational duties;

The facts constituting the crime 3-A. This is as indicated in the judgment.

(ii)an act in violation of its duties;

A) Acceptance of rebates under the existing agreement

(1) Regarding subcontracting

피고인은 2010. 1.경부터 2011. 8.경까지 전임 토목사업본부장인 조■■의 지시에 따라 외주구매본부 토목외주팀장 김■환을 통하여 하도급 공사대금을 부풀려 리베이트를 받기로 하는 약정이 이루어진 후 이를 인계받아 최■, 이■림을 통하여 6개공사와 관련하여 5개 하도급업체로부터 리베이트 명목으로 총 25억 6,000만 원(위 유죄로 인정된 업무상배임죄의 액수 미상의 금원 제외)을 교부받았다.

(2) Regarding design and research services

피고인은 2010. 1.경부터 2011. 5.경까지 전임 토목사업본부장인 조■■에 의하여 설계 및 지반조사 용역비를 부풀려 리베이트를 받기로 하는 약정이 이루어진 후 이를 인계받아 최■, 이■림을 통하여 14개 공사와 관련하여 설계업체 및 지반조사업 체로부터 리베이트 명목으로 총 22억 4,270만 원(위 유죄로 인정된 업무상배임죄의 액수 미상의 금원 제외)을 교부받았다.

B) Acceptance of rebates under an additional agreement

(1) Regarding subcontracting

From May 2010 to December 201, 201, the Defendant agreed to receive rebates for the payment of the subcontract price, and had the head of the Foreign Affairs Headquarters for Civil Affairs and Foreign Affairs (hereinafter “EM”) enter into a subcontract by reflecting the rebates agreement after July 2010, and had the head of the Foreign Affairs Headquarters for Civil Affairs and Foreign Affairs (hereinafter “EM”) enter into the subcontract. The Defendant was issued a total of KRW 4,076,00,000 (excluding the amount of occupational breach of trust, which was found guilty) from seven subcontractors in relation to the 111 projects through the said organization.

(2) Regarding design and research services

On April 2010, from around September 201 to September 2011, the Defendant agreed to receive rebates for design and ground investigation service costs relating to nine construction projects, and received a total amount of KRW 2.41 billion from design and ground investigation companies through this investigation agency (excluding the amount of money not included in the crime of breach of trust recognized as guilty) in the name of rebates from the design company and ground investigation company through this investigation agency.

3) Sub-determination

이로써 피고인은 조■■, 박■■, 최■, 이■림, 김■환, 김■철 및 수주 담당 총괄임원, 설계책임자들과 순차 공모하여 112억 8,870만 원(위 유죄로 인정된 업무상배임죄의 액수 미상의 재산상 이익 제외)의 재산상 이익을 취득하고, 피해자 회사에 같은 액수에 해당하는 재산상 손해를 가하였다.

(d) Property in breach of trust;

(i) Duties;

The facts constituting the crime of this case are as shown in Section 4-A.

2) Acceptance of money and valuables

A) Acceptance of rebates under the existing agreement

The facts of the crime 4-b. 1) are as stated in the facts of the crime 4-b. 1) except that the amount of money is received as a rebates in order to use it for the purpose of illegal street funds to receive the order of the 3rdton corporation from the bottom among the contents of the crime 4-b. 1) but the portion is replaced by "the amount of money received as a rebates (excluding the amount of money not included in the crime of breach of trust, which is found guilty)" in total 1.2 billion won

B) Acceptance of rebates under an additional agreement

In order to use the portion of the facts stated in Paragraph 4-b. 2, which is 50 million won (excluding the amount of non-amount of the crime of taking property in breach of trust which is found guilty) under the name of Liber in order to use the portion as illegal funds for the purpose of receiving the order of the Kton Corporation from the bottom of the facts stated in Paragraph 4-b. 2, it is the same as stated in Paragraph 4-b.2.2.2.2.2.2.2.2.2. of the facts of the crime of the crime of the crime of the crime of the crime of taking property in breach of trust, the portion which is 890 million won (excluding the amount of non-amount of the crime of taking property in breach of trust which is found guilty) under the name of Liber, in order to use it for the purpose of the illegal street funds for the purpose of receiving the order of the Kton Corporation.

A. Judgment on the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes

1) Relevant legal principles

In order to establish a crime of occupational breach of trust, a subjective perception that an act is against one’s own duty is likely to cause or threaten to cause property damage to the principal (see, e.g., Supreme Court Decision 88Do542, May 24, 198). Even if an operator or manager of a corporation raises funds using a corporation’s funds, if it is merely an allocation on the account book to make it difficult for a third party, other than the pertinent non-financial entity, to discover it, or it is recognized as a means to raise funds necessary for the operation of the corporation, it is difficult to recognize the intent of unlawful acquisition: Provided, That if an operator or manager of a corporation raises funds separately for the purpose of raising funds of the corporation without any connection with the corporation, or for personal purpose, it can be deemed that the intent of unlawful acquisition has been realized by the act of raising funds. In such case, whether such an operator or manager obtained funds from the corporation with an intent to raise funds from the corporation should be determined by comprehensively taking into account the nature and purpose of the corporation, the method and scale of raising funds, the period of 1010.

2) Determination

Based on the above legal principles, the health team and the evidence duly adopted and examined by the court of this case included the purpose of raising the funds of this case for the purpose of raising the funds of this case in determining the guilty of the crime of occupational breach of trust, and the purpose of using the funds for the illegal use of the funds for the funds of this case was to treat civil petitions and official duties incurred at the construction site for treatment of civil petitions and official duties, field encouragement funds, event encouragement funds, ordinary research funds, officers and employees' life-saving leave expenses, and prior activity expenses for the owner of the funds of the Kton project. The purpose of using the funds of this case, other than the above illegal funds, is to promote the funds of the company operation or management needs of the company, namely, smooth operation of the company, the management of officers and employees of the company, and the maintenance of ties relations with the customer. Thus, the defendant's intent of acquiring the funds of this case, excluding the above illegal funds, is not recognized.

Thus, this part of the facts charged should be pronounced not guilty pursuant to the latter part of Article 325 of the Criminal Procedure Act because it falls under the case where there is no proof of crime. However, as long as it is found guilty of occupational breach of trust in the judgment which is related to this comprehensive crime, the decision of

B. Determination on the taking of property in breach of trust

Since the crime of taking property in breach of trust is a crime of personal benefit and protection of legal interests, and is a person who administers another's business in the elements of the crime, the victim's existence is required. Therefore, the offender's acquisition of property in return for illegal solicitation is assessed as a victim and can be punished as a crime of taking property in breach of trust.

According to the evidence duly adopted and examined by this court, the Defendant is recognized to have acquired money as the name of rebates as shown in the facts charged. However, the Defendant used the money acquired as above for the instant non-funds, and as such, the remainder of the non-funds except for the illegal visa funds for the order of Kton Construction among the instant non-funds was created for the purpose of using it for the company. Therefore, the Defendant’s intent of unlawful acquisition is not recognized as to each of the funds acquired by the Defendant listed in this part of the facts charged.

Thus, each part of the facts charged should be pronounced not guilty under the latter part of Article 325 of the Criminal Procedure Act because it is the case where there is no proof of crime. However, as long as the court found the guilty of each crime of breach of trust in a single or a single comprehensive crime, the judgment of innocence shall not be rendered separately.

The presiding judge, judge and Dong judge

Judges Kim Jae-tae

Judges Lee Jong-soo