A. Whether executives, etc. of an insurance company under the Commercial Act who run the insurance business can be the subject of breach of trust under Article 130 (1) of the former Insurance Business Act (Law No. 2288 of Jan. 19, 1971) (negative)

(b) Whether a case constitutes a case where the director of the Ministry of Finance and Economy receives a bribe in connection with his/her duties when he/she receives money for the purpose of making efforts to acquire stocks of an insurance company (affirmative

A. In light of the provisions of Article 130 (1) of the former Insurance Business Act (Act No. 2288 of Jan. 19, 1971), since the subject of the breach of trust under the same Article stipulates that the subject of the breach of trust under the same Article is an insurance administrator, an insurance actuary, a mutual company's promoters, a director or any other officer, etc. who are not a company under the Commercial Act, the officers, etc. of a company operating the insurance business shall not be the subject of the breach of trust under Article 130 (1) of the Commercial Act, aside from being the subject of

B. If a defendant, who is the chief of the insurance department of the financial department, as the supervisory office of an insurance company, was responsible for the business of supervising the insurance company, has made a lot of efforts to ensure that commercial defendants take over stocks, etc. of the insurance company in gold 250 million won and in the future, he/she received money provided by the above above defendants to the effect that he/she will continue to take advantage of his/her duties as the working-level manager of the supervisory office in the course of the management of the insurance company,

A. Article 130(1) of the former Insurance Business Act (Law No. 2288, Jan. 19, 1971); Article 622 of the Commercial Act

Defendant 1 and two others

Defendants and Prosecutor

Attorney Jeon Soo-chul, Park Jae-chul, Shark

Seoul High Court Decision 74No211 delivered on February 2, 1983

The part of the judgment of the court below on the guilty of Defendant 1 and the part on the verdict of the court below on the charge that a bribe equivalent to KRW 8,310,000 was delivered in June and July 1972 is reversed, and this part of the case is remanded to the Seoul High Court.

The prosecutor's remaining appeals against Defendant 1 are dismissed.

All appeals by Defendant 2 and 3 are dismissed.

(1) First, the Defendants’ defense counsels’ grounds of appeal are examined.

(A) As to Defendant 1’s grounds of appeal

The judgment of the court below recognized that Defendant 1, who was a representative director of Nonindicted Company 1, violated his duty to faithfully manage the property of said Company and used 20,000,000 won, which was owned by said Company, to Defendant 3 as the expenses for the removal of a person in question in order to conceal his misconduct, thereby causing damage to said Company, and applied Article 130(1) of the former Insurance Business Act to this fact.

However, in light of the provisions of Article 130 (1) of the former Insurance Business Act (Act No. 2288 of Jan. 19, 1971), since the subject of the breach of trust under the same Article is an insurance administrator, an insurance actuary, a promoter of a mutual company, a director, or any other officer, etc. who is not a company under the Commercial Act, the officers, etc. of a company operating the insurance business cannot be the subject of the breach of trust under Article 130 (1) of the former Insurance Business Act, regardless of the fact that they are the subject of the special breach of trust under Article 622 of the Commercial Act. The court below's application of the same Article to the so-called "original offense of breach of trust under Article 130 (1) of the former Insurance Business Act" on the premise that the representative director of a non-indicted 1 company under the Commercial Act becomes the subject of the breach of trust under the same Act is erroneous in the misunderstanding of legal principles as to the subject of the breach of trust under the same Act, and therefore, the argument is justified.

(B) As to Defendant 2’s grounds of appeal

According to the evidence of the court of first instance maintained by the court below, the facts constituting the crime against Defendant 2 are duly recognized and there is no error of law by failing to exhaust all necessary deliberations like the theory of lawsuit or by misconception of facts against the rules of evidence.

As decided by the court below, if Defendant 2, as the chief of the insurance department, the supervisory office of the insurance company, was responsible for the supervision of the insurance company, as the head of the insurance division of the insurance company, and Defendant 2 made a lot of efforts to accept the stocks, etc. of Nonindicted Company 1 as the price for the judgment, and in the future, Defendant 2 received a bribe in connection with his duties, in the purport that Defendant 1’s actual manager of the supervisory office in the course of the management of the said company, who was an insurance company, has continued to take advantage of the original position. Thus, the court below’s judgment that deemed Defendant 2’s act of receiving a bribe is justifiable, and there is no error of law in the misapprehension of legal principles as to the bribe like the theory of lawsuit, incomplete hearing, and lack of reasoning. Further, the court below’s argument that Defendant 2 was erroneous in taking the above Defendant as the crime of acceptance of bribe without demanding changes in the indictment on the premise that it was different from the facts found by the court below. Accordingly, it cannot be justified in all of the grounds for appeal.

(C) As to Defendant 3’s grounds of appeal

According to the evidence of the court of first instance maintained by the court below, the facts constituting the crime against Defendant 3 are legally recognized, and there is no error of law in violation of the rules of evidence or incomplete hearing, such as the theory of lawsuit.

(2) The Prosecutor’s grounds of appeal against Defendant 1 are examined.

(A) According to the judgment of the court of first instance maintained by the court below, among the facts charged against Defendant 1, the court of first instance determined that the defendant 1 offered a bribe of KRW 700,000,000 around July 9, 1972, and KRW 200,000 from March 23, 1973, and that the defendant 1 violated the Insurance Business Act by consuming the amount of KRW 1,40,000 from May 26, 1972 as stated in its reasoning, the court of first instance decided that the part of the facts charged was presumed to have been without proof of the crime, and the court below maintained it. The court below was just in light of the records of the evidence preparation conducted by the court below while taking such measures, and there is no error in the misapprehension of the rules of evidence against the rules of evidence.

(B) According to the judgment of the court of first instance maintained by the court below, as to the facts that Defendant 1 conspireds with Nonindicted 2, 3, etc. and offered a bribe amounting to 310,000 won by requesting the six special investigation team by the Commissioner of the National Tax Service who was subject to special audit of the corporate tax, etc. of Nonindicted Company 1 in June 1972 and requesting the six persons from the special investigation team of the Commissioner of the National Tax Service who was subject to the special audit of the corporate tax, etc. of Nonindicted Company 1, and offering a bribe amounting to 8,00,000 won for the first time of July in the same year, it is found that Nonindicted 2 and 3 offered the above bribe, but Defendant 1 was aware of the fact that the prosecution offered the bribe, etc., and Defendant 2 and 3 denied the crime that there was no such instruction to the same person from the prosecution to the prosecution, and there is no other evidence to acknowledge it.

However, according to the records, Defendant 1 made a statement at the prosecutor's office to accept the above facts charged (see, e.g., Supreme Court Decision 2083No. 2083 to 2086). The contents of the statement are consistent with the contents of each statement made by Nonindicted 2 and 3, and are considered to be reliable. The court below is just that the above defendant made the above statement at the prosecutor's office, and on the premise that the above defendant denies the above facts charged by the prosecutor's office, the court below did not deliberate and decide on the above statement made by the above defendant at the prosecutor's office without any evidence to acknowledge the facts charged, and maintaining the judgment of the court of first instance which rendered a verdict of innocence is erroneous in the incomplete deliberation affecting the judgment or in violation of the rules of evidence.

(3) Therefore, the part of the judgment of the court below as to Defendant 1’s guilty and the part as to Defendant 2 and Defendant 3’s appeal are dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Jeong Tae-tae (Presiding Justice)