Defendant

Defendant

Cho Jae-ho

Attorney Yellow-gu et al.

Seoul Central District Court Decision 2005Ra5913 Decided November 17, 2005

The defendant's appeal is dismissed.

1. Summary of the grounds for suspension of parking lots;

A. Although the Defendant provided KRW 100 million in cash to Nonindicted 2 via Nonindicted 3 as stated in the judgment of the court below, this does not provide Nonindicted 2 with an illegal solicitation in connection with the duties of the board of directors of Nonindicted 1 Stock Company (hereinafter “Nonindicted 1 Stock Company”) as stated in the judgment of the court below, but rather, with economic support to Nonindicted 2 who was in a special relationship with the Defendant, recover the special relationship with the female, which was somewhat confisced by giving him with economic support. Furthermore, even though the Defendant provided the above money for multiple reasons, which is the only person who is able to properly believe the Defendant in the dispute over the management right of Nonindicted 1 Stock Company, for the purpose of promoting the smooth operation of the board of directors, the court below erred by misapprehending the legal principles on Article 630(2) of the Commercial Act, which led to a mistake that the Defendant committed a crime in the judgment of the court below, which affected the conclusion of the judgment.

B. The sentence sentenced by the court below to the defendant (two years of suspended sentence in October) is too unreasonable.

C. There is no benefit from the Defendant to commit the instant crime, and there is no risk of repeating the instant crime because the Defendant had already been dismissed at a temporary general meeting of shareholders, and there is no correlation with the management of Nonindicted Co. 1. Thus, it is reasonable that the Bank of Korea issued 10,000 won labbing 10,000 (Evidence 1) issued by the Bank of Korea, which is the object provided for the instant crime, is not confiscated. However, the lower court erred by misapprehending the legal doctrine on Article 48 of the Criminal Act, which provides for voluntary confiscation, thereby adversely affecting the conclusion of the judgment.

2. Determination on the grounds for appeal

A. First, we examine the grounds for appeal.

(1) Comprehensively taking account of the evidence duly adopted and examined by the court below and the statement at the court of first instance by non-indicted 2, the defendant, the representative director of the non-indicted 1 corporation, offered capital increase and caused forfeited stocks during the process, and offered them to the non-indicted 2 of the board of directors (five directors) who decided to dispose of forfeited stocks in order to secure management rights by acquiring them as major shareholders of the above company, and then offered them with the auditor of the above company to the non-indicted 3, and the defendant expressed his intention to offer property benefits by requesting the non-indicted 2 to the effect that he would accept forfeited stocks, and the auditor provided KRW 100 million in cash to the non-indicted 2 in return for giving the forfeited stocks at the second request. Thus, the defendant's request to the effect that the non-indicted 2, who is the representative director of the board of directors who decided to dispose of forfeited stocks, would not be erroneous in the misapprehension of legal principles or the principle of good faith, and there is no error in the misapprehension of legal principles as to the above defendant's appeal.

(2) Furthermore, the defense counsel's assertion after the deadline for submitting the statement of grounds for appeal expires, and the "crime of giving and receiving" under Article 630 (2) of the Commercial Act is established only when the "crime of giving and receiving" under Article 630 (1) of the same Act is established. In this case, since the non-indicted 2 received a certificate of conscience No. 1, it is not the "crime of giving and receiving" under Article 630 (1) of the Commercial Act against non-indicted 2, and therefore, it is not the "crime of giving and receiving" under Article 630 (2) of the same Act, and therefore, the defendant is not the "crime of offering and receiving" under Article 630 (2) of the same Act, and it is

However, the "crime of giving and receiving" under Article 630 (1) of the Commercial Act and the "crime of giving and receiving" under Article 630 (2) of the same Act refer to the requisite accomplices. However, the requisite accomplices need to cooperate by many people in a legally committed crime. The establishment of such crime is merely the necessity of the joint act and does not necessarily require the whole partner. Thus, the "crime of giving and receiving" under Article 630 (2) of the Commercial Act is only necessary to establish the "crime of giving and receiving" under Article 630 (1) of the same Act and the "crime of receiving and receiving" under Article 630 (2) of the same Act are not necessarily established in the other party's side (see Supreme Court Decisions 87Do1699, Dec. 22, 1987; 2005Do427, Feb. 24, 2006; 2005Do3727, Feb. 24, 2006).

B. Next, we examine the reasons for appeal.

Considering the fact that the amount of money that the Defendant provided to Nonindicted 2 has reached KRW 100 million, that the Defendant denied the crime and did not reflect the mistake, and that other circumstances that form the conditions for the sentencing specified in the instant case, such as the motive, means, results, the circumstances after the crime, the age, character, and environment of the Defendant, the sentence imposed by the lower court is deemed reasonable and that it is unreasonable. Therefore, the grounds for appeal by the Defendant are without merit.

C. Finally, I examine the reasons for appeal.

(1) In principle, the issue of confiscation under Article 48 (1) of the Criminal Code is the discretion of the judge in principle, and the defendant does not confiscate the above No. 1, which is the money granted to the non-indicted 2 in the course of illegal solicitation, and return it to the defendant or revert it to the non-indicted 2 to the National Treasury is considerably contrary to justice and equity. In light of this point, the decision of the court below that confiscated subparagraph 1 of the above No. 1 from the defendant is proper, and there is no violation of the principle of excessive prohibition or misunderstanding of legal principles as to Article 48 of the Criminal Code, as pointed out in the grounds for appeal.

(2) Furthermore, the defense counsel asserts that if the defendant commits a crime of grant under Article 630(2) of the Commercial Act after the expiration of the period for submitting the statement of grounds for appeal, the seized KRW 100 million is owned by Nonindicted 2, and it cannot be confiscated because it does not fall under “goods not owned by any person other than the criminal” under Article 48 of the Criminal Act, and this is also determined in this regard.

In addition, according to the facts found in the facts stated in the judgment below, the ownership under subparagraph 1 belongs to the non-indicted 2 (see, e.g., Supreme Court Decisions 79Da483, Nov. 13, 1979; 99Do275, Jun. 11, 1999). Meanwhile, in collusion with the non-indicted 3, the act of the defendant giving property interest while making an illegal solicitation to the non-indicted 2 and the act of receiving it regardless of whether the non-indicted 2 intended to give or receive it, the act of the co-offender includes not only the co-principal, the crime of aiding and abetting, and the person who is in a requisite co-offender. Thus, according to the facts found in the crime in the judgment below, the ownership under subparagraph 1 belongs to the non-indicted 2 (b).

Therefore, the defense counsel's above assertion is without merit.

3. Conclusion

Therefore, the defendant's appeal is dismissed in accordance with Article 364 (4) of the Criminal Procedure Act since the defendant's appeal is without merit. It is so decided as per Disposition.

Judges Lee Sung-hun (Presiding Judge)