(영문) 서울고등법원 2013. 5. 30. 선고 2013노613 판결

However, from the date this judgment became final and conclusive, the execution of the above punishment shall be suspended for three years for Defendant 1, and for two years for Defendant 2.

The seized outer lives (No. 4) and two computers (No. 5) shall be confiscated from Defendant 2.

20,000 won shall be additionally collected from Defendant 1.

Of the facts charged in this case against Defendant 2, the charge of aiding and abetting the Violation of the Attorney-at-Law Act is acquitted.

2. The appeal by Defendant 3 and the prosecutor against Defendant 3 are dismissed, respectively.

Reasons

1. Judgment on the part of the violation of the Personal Information Protection Act

A. Judgment on the mistake of facts or misapprehension of legal principles by Defendant 1

(1) Summary of Defendant 1’s assertion

Defendant 1’s act of opening up a list of party members of ○○○○○ Party (hereinafter referred to as “list of party members of this case”) by e-mail, etc. to Defendant 2, Nonindicted 2, and 3, and a list of party members of each region is referred to as “list of party members of this case” and, in the case of distinguishing the two, the former constitutes “list of entire party members of this case” and “list of party members of each region of this case” under the Personal Information Protection Act.

Nevertheless, the lower court found the Defendant guilty of this part of the facts charged, or erred by misapprehending the legal doctrine on “disclosure”, “providing”, or “discharge” as prescribed by the Personal Information Protection Act, thereby adversely affecting the conclusion of the judgment.

(2) Determination

(A) As to the divulgence, provision, or leakage of personal information against Defendant 2

1) The judgment of the court below

The lower court determined that Defendant 1’s act of sending Defendant 2 a list of party members of the instant case to Defendant 2 by e-mail, based on the following circumstances acknowledged by comprehensively taking account of the adopted evidence, constituted “disclosure” or “providing” prohibited under Article 71 subparag. 5 and Article 59 subparag. 2 of the Personal Information Protection Act.

A) Defendant 1 and 2 consistently stated in the investigative agency and the court of the court below that “Defendant 1 introduced a preliminary candidate for a National Assembly member, etc. to Defendant 2 by taking advantage of the status of the party on duty at ○○○○○○ Party, so that they can enter into a contract for the dispatch of text messages, and, in the event that a contract is a sex, he/she entered into an oral partnership agreement by allowing the settlement of profits by either KRW 0.5 or KRW 1 per case according to the number of sending text messages.”

B) From January to February 2012, Defendant 1 provided Defendant 2 the list of party members of this case to Defendant 2, which was the 19th National Assembly members election day, was at the time when the number of preliminary candidates wishing to take part in the National Assembly members and the demand for large volume of text messages for the purpose of promoting the election campaign for the National Assembly members was expected to significantly increase. The list of party members of this case is necessary for publicity to a large number of the above preliminary candidates, while Defendant 2, as the representative director of Nonindicted Co. 4 Co., Ltd. (in the case of a company for convenience, the “stock company,” among its corporate names, need to obtain a list of party members of this case where it is obvious that Defendant 2 will assist in the conclusion of the contract for sending text messages and its business. Accordingly, Defendant 1 could have sufficiently anticipated that Defendant 2 would use the list of party members of this case for his own business.

C) Defendant 2 received a list of party members by region of the instant case from Defendant 1, and directly requested Defendant 1 to provide the entire list of party members of the instant case.

D) The instant party members list, which Defendant 2 received from Defendant 1, was written on the name, cell phone number, address, telephone number, office phone number, workplace, and source of responsibility under the name of “party members list”, and thus, Defendant 2 was deemed to have known of the meaning of the said data.

E) After Defendant 1 received the list of the entire party members of this case from Defendant 1, Defendant 2 ordered Co-defendant 4 and Nonindicted 6, who are the employees of Nonindicted Company 4, to divide them into local districts, and immediately provided a list of the party members in five local districts, including the Changwons per ○○○○ Party, to Nonindicted 7, who is a political consulting business entity, according to Defendant 1’s instructions, and received KRW 750,000 in return. Defendant 2 provided a list of the party members in the first instance trial, who are the head of Nonindicted Company 8, the head of the headquarters of Nonindicted Company 4, who installed a telephone call for sending text messages, to Defendant 4.

F) Defendant 1 requested Defendant 3 in charge of party membership management at the first team of the organization of ○○○○ Party Organization, and received the list of party members of this case, and then delivered it to Defendant 2. In light of the circumstances surrounding this delivery, Defendant 1’s request to Defendant 3 for the sole reason that Defendant 1 was unnecessary for the future, Defendant 1 obtained the list of party members prohibited from external outflow and delivered it to Defendant 2, is not persuasive.

G) Defendant 1 provided Nonindicted 3 and 2, etc. separate from the list of party members provided to Defendant 2, a list of party members by region of this case.

H) The list of party members of the instant case is stored in the computer file format, making it possible to keep, edit, and copy it easily, and there is no reason to request Defendant 1 to keep it in the custody of Defendant 2.

2) The judgment of this Court

In full view of the circumstances such as the reasoning of the lower court duly admitted and examined and the following circumstances, the lower court’s determination on this part is justifiable, and further, it is determined that Defendant 1’s act of sending Defendant 2 a list of party members of this case to e-mail constitutes “discharge” prohibited under Articles 71 subparag. 6 and 59 subparag. 3 of the Personal Information Protection Act. Accordingly, this part of the allegation by Defendant 1 is without merit.

A) Defendant 2 stated in the prosecutor’s investigation that “Defendant 1 was in his own possession of the list of party members of the instant case and would be helpful, and that it would be well managed as it would be the same.”

Defendant 1 voluntarily stated that “Defendant 2 thought that Defendant 2 may utilize it for his own business with a list of party members of the instant case,” or that “Defendant 2’s list of party members in a specific region as necessary for Defendant 2’s business was dried up later, it is true that Defendant 1 presented a list of all party members of the instant case: Provided, That it is well clear how Defendant 2 actually used it for business.”

Each of the above statements is inconsistent with Defendant 1’s assertion and standing that Defendant 2 was unaware of the circumstances that Defendant 2 would use the list of party members in the business of Nonindicted Company 4.

B) Furthermore, as seen below, Defendant 1 publicizedd Nonindicted Co. 4 to ○○○○ National Assembly member preliminary candidate, etc., and concluded a contract on the dispatch of text messages with Nonindicted Co. 4, Defendant 1 mentioned as if he could be provided with the list of party members in the instant region, and Defendant 2 also confirmed that the local constituency requiring the list of party members was one location. In addition, Defendant 2 also asked Defendant 1 to seek the list of party members in this case and requested Defendant 1 several times.

C) On February 14, 2012, immediately after introducing Nonindicted Company 7 to Nonindicted Company 4, Defendant 1 told Defendant 2 to separately edit the list of party members in a specific region among the entire list of the instant party members as X-cell files. However, on February 14, 2012, Nonindicted 7 sent to Defendant 1 a text message stating, “Tgu number of party members was sent to Defendant 1, “Sgu number of candidates, Nonindicted 10, Nonindicted 11, and Changwon, Nonindicted 12, and 13 upon request.” On February 16, 2012, Defendant 2 asked Defendant 2 who had not yet been able to keep a telephone until the date on which he requested Defendant 2 to send a list of party members in five local constituencies, including Changwon per ○○○ Party.”

Meanwhile, in the court of the court below, Defendant 2 stated that “Defendant 1 7’s phone calls were phoneed, and thus, Defendant 2 took the meaning of “Defendant 1’s phone election campaigned and opened a large number of people.” As Nonindicted 7 called Defendant 1’s phone by introduction, Defendant 1 was aware of the fact that Defendant 1 was a party member list.”

In light of the above circumstances, even though it cannot be readily concluded that Defendant 2 received Defendant 1’s instruction and sent to Nonindicted 7 a list of party members in five local districts, including Changwons, as recognized by the lower court, Defendant 1 cannot be deemed to have no relation to the provision of the above list to Defendant 2’s Nonindicted 7, as so argued by the lower court.

D) At the time of sending the instant party members list to Defendant 2 by e-mail, Defendant 1 did not have any intent to withdraw from the election of the 19th National Assembly members, and did not have any other specific plans for future political activities. Furthermore, when the lapse of time due to additional admission of or withdrawal from the party members, personal information changes of the existing party members, etc., the value of the relevant materials for election purposes as well as the value of the materials for election purposes should be reduced differently.

Therefore, Defendant 1’s assertion is difficult to believe that Defendant 1’s argument is for the future political activities of his own country, on the grounds that Defendant 3 obtained a list of party members of this case from Defendant 3 and sent it to Defendant 2.

(B) As to the divulgence, provision, or leakage of personal information against Nonindicted 2 and 3

1) Article 71 subparag. 5 of the Personal Information Protection Act and Article 59 subparag. 2 of the same Act mean “disclosure” or “provision” prohibited under Article 71 subparag. 6 of the same Act or “discharge” prohibited under Article 59 subparag. 3 of the same Act that means “any person other than a person who has managed or processed the relevant personal information” is clear.

2) However, according to the following circumstances acknowledged by the evidence duly adopted and examined by the lower court, Defendant 1’s act of sending the list of party members in the instant region to Nonindicted 2 or Nonindicted 3 by e-mail or mail constitutes “disclosure”, “providing”, or “discharge” prohibited by the Personal Information Protection Act. Accordingly, Defendant 1’s assertion on this part is without merit.

A) In ○○○○○ Party, the instant party membership list is not provided to the competitor at the time of competition in a party competition for Gongcheon. However, in the case of the electoral group list, only the elector’s name, resident registration number, and the address to Eup/Myeon/Dong unit is included therein.

B) As a preliminary candidate for the members of the Ulsan-gun National Assembly at ○○○○○○○○ Party, Nonindicted 2 could not seek a list of members of the Ulsan-gun National Assembly. Accordingly, Nonindicted 2 asked Defendant 1 to seek the said list of members on January 26, 2012, and Defendant 1 sent the said list by e-mail to Nonindicted 2 around January 31, 2012. However, around 18:04 on the day, Defendant 1 sent the number of members of the National Bank to Nonindicted 2, and Nonindicted 2 deposited KRW 50,000 on the said account at around 18:48.

C) Nonindicted 3 was an election campaign worker of Nonindicted 22, who is a preliminary candidate for the National Assembly member of Ulsan-gu Seoul Metropolitan City, a member of the National Assembly at ○○○○○○○○○○ Party, and could not seek a list of the party members on official basis. Accordingly, Nonindicted 3 asked Defendant 1 to seek the above list of party members, and Defendant 1 sent the USB (Univers Bus) in which the above file for the roster of party members was stored on a selective basis around January 31, 2012. However, at the time, Defendant 1 sent the sender of the above door-gu unit to Nonindicted 3.

B. Judgment on the mistake of facts by Defendant 3

(1) Summary of Defendant 3’s assertion

Defendant 3 did not intend to divulge, provide, or leak the list of party members of this case to a third party; Defendant 1 did not fully recognize that Defendant 1 would divulge, provide, or leak it to the outside at Defendant 1’s request.

Nevertheless, the judgment of the court below which found Defendant 3 guilty of the facts charged is erroneous and adversely affected the conclusion of the judgment.

(2) The judgment of this Court

(A) Relevant legal principles

The credibility of a confession made in the court below cannot be said to be doubtful solely on the grounds that the confession made in the court below differs from the testimony made in the court below. In determining the credibility of a confession, the credibility of a confession should be determined in consideration of whether the contents of the confession are objectively rational, what is the motive or reason for the confession, what is the background leading up to the confession, and what does not conflict with or conflict with the confession among other evidence (see, e.g., Supreme Court Decision 2001Do4091, Sept. 28, 2001). Meanwhile, if the confession made in the court below did not have any reason prescribed in Article 309 of the Criminal Procedure Act, and there is no situation where there is no reasonable doubt among the motive and process of making the confession made in the court below (see, e.g., Supreme Court Decision 92Do873, Jun. 12, 1992).

(B) Determination

Defendant 3 led to the confession of the facts charged against himself at the court of original instance. However, in full view of the following circumstances acknowledged by the evidence duly admitted and examined by the court below, Defendant 3’s above confession statement can be sufficiently recognized as credibility.

1) 피고인 1은 피고인 3에게 2012. 1. 29. “돈벌이가 잘 되네. △△△△△ㅋㅋ”라는 문자메시지를, 2012. 3. 16. “△△△△△ 친구 왔다”는 문자메시지를 각 보냈다. 따라서 피고인 2나 공소외 4 회사[△△△△△는 공소외 4 회사에서 운영하는 문자메시지 대량 발송 인터넷 사이트인 ‘SMS △△△△△(인터넷 주소 1 생략)'를 의미한다.]에 대하여 전혀 알지 못하였다는 피고인 3의 주장은 믿기 어렵다.

2) Defendant 1 made several times the legitimacy of sending text messages to Defendant 3 to ensure that Defendant 1 does not go to others while requesting the register of party members of the instant case by text messages.

Defendant 3 also sent text messages to Defendant 1 to the effect that Defendant 1 sent files to the regional party members list created by editing at Defendant 1’s request with e-mail and immediately deleted them. In addition, Defendant 3 did not notify Defendant 1 of the fact that the instant party members list was sent to Defendant 1.

3) From November 201 to 201, Defendant 3 served as one team of the organization of ○○○○ Party, and took charge of personal information management, such as party membership management. However, Defendant 1 requested Defendant 3 to change the list of party members from January 2012 when the public debate on the candidate for the National Assembly member of ○○○○ Party and the intra-party competition from January 201.

4) Defendant 1 does not have any authority to deal with the list of party members of the instant case. In addition, from the standpoint of Defendant 3, there was no objective circumstance to believe that Defendant 1 is necessarily in need of the list of party members of the instant case in order to perform his duties as the Director General of ○○○ Party Man and the Director General.

5) Defendant 1 made a statement that is partially consistent with Defendant 3’s assertion. However, Defendant 1’s statement is not acceptable on the grounds that there is a strong doubt that Defendant 1 did not make a false statement to protect Defendant 3, who is one’s own interest and co-offenders, by failing to explain the meaning of this text message sent to Defendant 3. There is no other evidence that conflict with or contradictory to Defendant 3’s above confessions.

Therefore, this part of the judgment of the court below which found Defendant 3 guilty of the facts charged against Defendant 3 through the above confession statement and reinforcement evidence is justified, and there is no error as otherwise alleged by Defendant 3.

2. Determination on the part on taking property in breach of trust and giving property in breach of trust

A. Summary of the defendant 1 and 2's assertion

(1) Defendant 2 received e-mail from Defendant 1 is not an internal secret but an open material. In addition, Defendant 2 merely requested the company’s publicity pursuant to the partnership agreement with Defendant 1, but did not intervene in Defendant 1’s publicity method. Meanwhile, Defendant 2 did not request Defendant 1 to obtain the party members list, and the instant party members list are materials that can be easily accessed and used by the candidates for the election of public officials. Accordingly, there was no fact that Defendant 2 made an illegal solicitation to Defendant 1, and Defendant 1 also did not receive an illegal solicitation from Defendant 2.

(2) Although it was true that Defendant 1 received KRW 4 million from Defendant 2, Defendant 1 was not the price for the provision of the pertinent party members list, etc., it is not the price for the provision of the instant party members list, but only for advance payment, consulting price, or the profit for the selection of a party member on behalf of Nonindicted Company 4.

(3) Nevertheless, the lower court erred by misapprehending the facts charged and adversely affecting the conclusion of the judgment.

B. Determination

(1) As to the existence of an unlawful solicitation

(A) The judgment of the court below

The lower court determined that Defendant 2 made an illegal solicitation, such as requesting Defendant 1 to provide a list of party members of the instant case to Defendant 1, based on the following circumstances acknowledged by comprehensively taking account of the adopted evidence.

1) The instant party members list provided by Defendant 1 is likely to infringe on an individual’s right to privacy, as detailed personal information, such as the name, address, telephone number, etc. of an individual who has joined the ○○○○○○ Party, and thus, may be abused for crimes using such information. In particular, the issue of membership of a specific political party is an important information directly related to political fundamental rights, and such information constitutes personal information that may cause serious infringement of fundamental rights if disclosed to the public.

2) Defendant 1 worked as the watchkeeping staff of ○○○○○ Party for more than 20 years. From around August 201, Defendant 1, who served as the head of ○○○○○○ Party, had to protect party members’ rights by making efforts to prevent personal information of ○○ Party members from being used against the party’s will or divulged to a third party without following lawful procedures. Defendant 1 had a duty to ensure fair competition among the candidates in the party.

3) If the list of party members of the instant case was disclosed voluntarily and provided to a specific candidate, it is highly likely that the fairness of the process of recommending candidates for public office by ○○○ Party may be significantly undermined by providing publicity activities under more favorable circumstances than those of other candidates not obtained.

4) Defendant 1 received money in return for providing Defendant 2 with a list of party members of the instant case.

5) Defendant 1 and 2 have consistently asserted as to whether Defendant 2 requested Defendant 1 to provide the instant party members list. However, according to Defendant 2’s statement, and text messages given and received by Defendant 1 and 2, Defendant 2 is recognized as having requested Defendant 1 to provide the instant party members list.

(B) The judgment of this Court

1) Relevant legal principles

The crime of giving property or property in breach of trust shall be established by giving property or property benefits to the person who administers another's business in exchange for an unlawful solicitation in connection with his/her duties, and the other party shall be established by acquiring it in

In this case, “a person who administers another’s business” is not limited to a person who administers another’s business (see, e.g., Supreme Court Decision 2003Do301, Mar. 25, 2003). “A person who is deemed to have a fiduciary relationship to handle another’s business in light of the principle of trust and good faith with another person” means a person who is deemed to have a fiduciary relationship to handle one’s business in an internal relationship with another person, and does not necessarily require that a person has a right to engage in business in an external relationship with another person. In addition, the ground for the conduct of business, i.e., the ground for a fiduciary relationship, may arise through statutory provisions, legal acts, custom, or business management (see, e.g., Supreme Court Decision 2

On the other hand, “illegal solicitation” does not necessarily require that it constitutes the substance of occupational breach of trust, and it is sufficient to determine that it goes against social rules or the principle of good faith. The determination of such solicitation ought to comprehensively consider the contents of solicitation and the amount of consideration related thereto, form, and integrity of transactions, which are protected by the law, and such solicitation does not necessarily require an explicit statement (see Supreme Court Decision 2008Do6987, Dec. 11, 2008, etc.).

2) Determination

Based on the above legal principle, Defendant 2 may fully recognize the fact that Defendant 1 made an “illegal solicitation” as described in this part of the facts charged, either explicitly or implicitly, in full view of the circumstances as shown in the lower court’s reasoning, which are acknowledged by the evidence duly adopted and examined by the lower court, the possibility of access to the internal data of ○○○○○○○○○○○○○○○○○○○ Party, its business value, Defendant 1’s method of public relations for Defendant 4, Defendant 2’s awareness on the method of public relations, and the specific form of business utilizing the party members registry of this case, and the degree of involvement of Defendant 2 in the provision of the party members list of this case. Accordingly, the lower court’s determination on this part is justified, and there is

A) In general, Defendant 2, who is Defendant 1, cannot easily seek data from Defendant 1 on the inside of the ○○○○○○○○ Party, but the business value is considerably large.

① In February 2012, Defendant 2’s list of final and conclusive ○○○○○○ Party, which was e-maild by Defendant 1, indicated in detail the personal information that was not disclosed to the general public, such as the front place of the resident registration number, address, contact number, unlike the materials distributed to the media, and thus, cannot be easily sought as Defendant 2.

Defendant 2 may engage in business activities, such as promoting Nonindicted Company 4 by using the contact address of the person who confirmed the official capacity of ○○○○○○○ Party, which is indicated in the above data. Therefore, the above data will be helpful for Nonindicted Company 4’s business.

② In the list of the entire party members of this case, nine members of the organization of ○○○○ Party have access authority. In the list of party members of this case, only on the list of party members within the jurisdiction of the relevant City/Do parties, the employees of the Secretariat excluding the contractual positions of the relevant City/Do party, and the chairperson of the operation committee of the

However, as many telephone numbers of local residents in the constituency in which a member of the National Assembly, preliminary candidates for election of National Assembly members, etc. secure, they can maximize the effectiveness of publicity through sending text messages. Accordingly, if the company that sent text messages came to know of the existence of the party members list in the company that sent text messages, it is inevitable to favor the company. In fact, Nonindicted 5 requested a database (referring to the party members list) from among the candidates in the court of original instance, and made a statement to the effect that the contract for sending text messages was not concluded if he did not ask by telephone.”

Therefore, the list of party members of this case has significant value in the business activities of Defendant 2.

B) Defendant 1 promoted Nonindicted Company 4 by utilizing internal data, such as the instant party members list, and Defendant 2 was fully aware of such circumstances, and two persons were considered to have actively utilized the instant party members list for Nonindicted Company 4’s business.

① At the time of prosecutor’s investigation, Defendant 1 introduced Defendant 2 to a pro ratad person for publicity and business methods for Nonindicted Company 4, and made the list of party members available to him by e-mail or mail. In addition, Defendant 1 stated that “The other method gives Defendant 2 a list of party members in the area desired by Defendant 2, and Defendant 2 conducts business by utilizing the list.”

② Co-defendant 6 of the first instance trial stated in the prosecutor’s investigation that “Defendant 2 had the director general of ○○○○○○ City Madle, and that he had a nationwide data related to the election, so there is no problem in running his business, and that he was able to do so more than other companies.”

③ Co-defendant 4 of the first instance trial stated in the prosecutor’s investigation that “Defendant 2 talked that Defendant 2 would come to be a nationwide data bees on the Habn in January, 2012, but did not seem to see. Moreover, Defendant 2 opened a file in the USB received from Defendant 2, so it was the list of the entire party members of the instant case.”

④ Co-defendant 5 of the first instance court, who is an employee of Nonindicted Company 4, stated in the prosecutor’s investigation that “Defendant 2 had a general roster of party members of this case from Defendant 2, who was present at the beginning of February 2012. At the time, Defendant 2 stated that “At the time, Defendant 2 called to the office of the national candidate, to ask for a database as to whether it is necessary, and then ask for a regional roster of party members.” Defendant 2 also stated that “In the prosecutor’s investigation, Co-Defendant 5 of the first instance court, who was in the phone of each candidate office, made it difficult for Defendant 5 to carry on a general roster of party members.”

⑤ Co-defendant 5 of the first instance trial, upon Defendant 2’s instruction, received KRW 30,00 from Nonindicted 14 on February 6, 2012, and sent the list of party members of ○○○ Kimhae-ro, and deposited KRW 300,000 from Nonindicted 15 on February 14, 2012, and sent the list of party members of ○○○○○○○○○ Party, which received KRW 750,00 from Nonindicted 7 on February 16, 2012, and sent the list of party members of 5 local constituency, including ○○○○ Party Changwon, to the preliminary candidate.

④ On January 31, 2012, Defendant 1 publicized Nonindicted Co. 17, a preliminary candidate for Nonindicted Co. 16, Nonindicted Co. 16, who was the Jeju branch of ○○○○○ Party, in advertising Nonindicted Co. 17, the term “(the side of Nonindicted Co. 4) counseling and talking about Nonindicted Co. 4. When installing (the phone for sending text messages) it would cut off the party members roster.” Defendant 1 sent Nonindicted Co. 1’s roster to Nonindicted Co. 17 by e-mail on February 16, 2012. At that time, Nonindicted Co. 16 concluded a contract on the dispatch of text messages with Nonindicted Co. 4.

④ On January 31, 2012, Defendant 1 sent a text message to Nonindicted 3, 2012, stating that “I will not look at by a missing mail,” and that “I will send the text message to Nonindicted 3 as soon as possible from Nonindicted 3, who received a request to send it by mail. I sent it again. I sent the text message “I will going to Busan △△△△△△△△△△△. I will going to Busan, which is the date the △△△△△△△△△△△△△△△△△△△△△ president, and I will go to Busan.”

On the other hand, on February 7, 2012, Defendant 1 knew Defendant 2, from Nonindicted 3, to receive a list of members of the Nam-gu party in Ulsan-gu, Ulsan-gu, Seoul-gu, Seoul-do, and thereafter, Nonindicted 3 entered into a contract on the dispatch of text messages with Nonindicted Company 4.

④ On January 31, 2012, Defendant 1 provided Nonindicted 2 with a list of party members of the U.S. Special Metropolitan City (○○○○○○○○ Party). Nonindicted 2 sent the above list to Defendant 2 by delivering the mail received from Defendant 1 as is, on February 2, 2012. Around that time, Defendant 1 entered into a contract for sending text messages with Nonindicted Company 4 on behalf of others.

① Around February 12, 2012, Nonindicted Party 19, a candidate for ○○○○○ Gyeongnam-ro Gyeongnam-ro, entered into a contract on the dispatch of text messages with Nonindicted Party 4. However, on February 12, 2012, Defendant 1 sent a text message to Defendant 2, stating that “I would have been able to do so. I will see that I would have been able to do so.” On February 13, 2012 following the following day, Nonindicted Party 2, along with Defendant 2, sent Nonindicted Party 19 or Nonindicted Party 19, directly posted Nonindicted Party 19 at ○○○○ ○○○ ○○ Party’s roster of party members (However, Defendant 2 and Nonindicted Party 19 appears to have been able to have been locked during the process of dividing conversations between Defendant 1 and Nonindicted Party 19).

C) Defendant 2 requested Defendant 1 to provide a list of party members of the instant case on several occasions.

① Defendant 2 made a statement to the prosecutor that “Defendant 1 sent a list of party members in Daejeon-nam area to the main day and deleted the number of them.” As such, Defendant 1 asked Defendant 1 to send a list of party members in the area of Daejeon-nam area to Defendant 1, and Defendant 1 asked Defendant 1 to send a list of party members in the area of Daejeon-nam area, and requested to send a list of all party members,” or that “Defendant 1 sent a list of party members managed by Defendant 1 to ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○ Party

② On February 11, 2012, Defendant 2 sent a text message to Nonindicted 20, a preliminary candidate, and Nonindicted 21, a preliminary candidate of the Busan Young-gu, to Defendant 1 on February 13, 2012 and requested Defendant 2 to seek a list of party members in the relevant area by sending the text message “to request the Cheongju-si Do Do Do Do Do Do Do Do” and “to request the Do Do Do Do Do Do Do Do Do Do Do Do do Do Do do Do Do

③ On February 13, 2012, Defendant 2 sent Defendant 1 a text message to Defendant 1, stating that “The U.S. P. O. P. P. O. P. P. P. P. P. P., Defendant 2 sent Defendant 1 a list of the members of the P. P. P. P. P. P. P. P., Defendant 2 sent the list of members of the P. P. P. P. P. P. P. P. P. Defendant 2 to Co-Defendant 6 of the first instance trial on February 21, 2012.

(2) As to the existence of a quid pro quo relationship

(A) The judgment of the court below

For the following reasons, the lower court determined that Defendant 1’s KRW 4 million received from Defendant 2 constituted an illegal solicitation.

1) The business of sending text messages by Nonindicted Co. 4, which Defendant 2 serves as the representative director, concluded a contract with Nonindicted Co. 4’s National Assembly members preliminary candidates who wish to send text messages to Nonindicted Co. 4, and had Nonindicted Co. 8, in cooperative relations with Nonindicted Co. 4, install a telephone device for sending text messages to the pertinent candidate’s office. The candidate’s phone number directly owned by the candidate, entered the phone number into the pertinent candidate’s office and sent a large amount of public relations text messages (in the form of web page, the customer subscribed to Nonindicted Co. 4’s website and charged the expenses, and then directly input and send text messages).

In the case of sending and publicizing text messages in the above form, it may be a critical factor to determine whether a candidate has secured a large number of voters, as much as possible, the failure of publicity. Accordingly, if it is known that Nonindicted Co. 4 holds the instant party members list, etc., the multiple contracts will be concluded on the condition of providing it, and it may account for a very favorable position compared to the competitor in the process. Accordingly, Defendant 2 seems to have strongly sought to secure the instant party members list, which may be helpful to business.

2) Defendant 2 received a list of party members by region of this case several times from Defendant 1, and Defendant 1 demanded Defendant 1 to provide the entire list of party members of this case and received them.

3) The delivery and receipt time of the above 4 million won seems to be almost close to the point at which Defendant 2 requested Defendant 1 to provide a list of party members of this case by using text messages, etc. to Defendant 1 and received the list of party members of this case.

4) Defendant 2, upon Nonindicted 7’s request on or around February 16, 2012, provided a list of the party members of the ○○○○○○○ Party in five areas south of the Gyeongnam area, and received KRW 7,50,000 as the price for the provision of the party members list. However, Defendant 2, despite obtaining profits from the provision of the party members list as above, did not provide any economic benefits to Defendant 1 who provided it, and Defendant 1 also provided “the divulgence of personal information to Defendant 2,” which constitutes a criminal act without any consideration, cannot be understood formally.

5) Defendant 1 did not confirm the specific contents of the consulting that Defendant 2 provided to Defendant 2 (or, as an expert in the business of sending text messages, Defendant 2 explained the contents of the business to Defendant 1 as an expert in the business of sending text messages) and Defendant 2 stated that Defendant 1 would have anticipated that the settlement amount to be received by Defendant 1 would exceed KRW 4 million without explaining the calculation of profits to be distributed to Defendant 1 based on any settlement data. However, it is difficult to understand this.

6) At the time, Defendant 1 did not have any economic difficulty as much as he requested Defendant 2 to pay the profit in advance, and there was no circumstance in which the activity expenses for the business was urgently needed.

7) Defendant 1 and 2 may not exclude the possibility of additional delivery and receipt of money pursuant to the provision of the party members roll or the contract for sending text messages, in addition to the above four million won.

8) From August 201 to May 201, 201, Defendant 1, as the Director General of ○○○○○○ Party, was in charge of supporting the youth activities of ○○○○○ Party, publicity subject to the right holder, etc. On the other hand, Defendant 1 was in charge of indirect and fair management, etc. of various public officials’ competitive election, such as the presidential election of National Assembly members, and was additionally obligated to maintain the confidentiality of ○○ Party and prevent internal data from being leaked without permission.

(B) The judgment of this Court

1) Relevant legal principles

Where the nature of money or valuables provided to a person who carries out another person's business is indivisiblely combined with the nature of the consideration for illegal solicitation and cases concerning other acts, such money or valuables have the nature of an indivisible consideration for illegal solicitation (see Supreme Court Decision 2012Do535, May 24, 2012).

2) Determination

Based on the aforementioned legal doctrine, comprehensively taking account of the circumstances as shown in the lower court’s reasoning and the following circumstances admitted by the lower court based on the evidence duly admitted and examined, Defendant 1’s KRW 4 million received from Defendant 2 constitutes an illegal solicitation as stated in this part of the facts charged. Furthermore, even if part of the money was included in the same business agreement between Defendant 1 and Defendant 2, insofar as the said money was indivisiblely combined with the aforementioned illegal solicitation, the entire amount of KRW 4 million constitutes an illegal solicitation. Accordingly, the lower court’s determination on this part is correct, and there is no error as otherwise alleged by Defendants 1 and 2.

A) Defendant 1 and 2 made a statement with the assent of all the parties that they concluded a trade agreement to pay profits of KRW 0.5 won or KRW 1 won per case to Defendant 1 according to the number of text messages sent in case Nonindicted Company 4 entered into a contract for the dispatch of text messages with Defendant 1’s aid to Defendant 1.

Therefore, Defendant 1’s act of providing Defendant 2 with inside information or data of the instant party members registry, etc., or publicizing Nonindicted Company 4 in connection with the above internal information or data, cannot be deemed as constituting a distribution of profits naturally planned under the agreement of the said business.

B) Defendant 2 asserts that Defendant 1 received demand from Defendant 1 for business activities, etc. and paid KRW 4 million to Defendant 1. However, Defendant 1 stated that “Defendant 2 attempted to operate his/her business and gave it to Defendant 2” at the time of investigation by the prosecution, and contrary to the aforementioned assertion.

C) On January 31, 2012, Defendant 1 sent his account number to Defendant 2 via text messages to Defendant 2. However, on the same day, Defendant 1 sent a text message to Defendant 2, stating that “I sent me address. I sent to the candidate identified in Gangwon-do, and sent a list of candidates for regional Gongcheon-do, Gangwon-do.” On February 1, 2012, Defendant 2 sent a text message to Defendant 1, stating that “the area necessary for width is anywhere.” Meanwhile, Defendant 2 deposited KRW 200,000 in the above national bank account of Defendant 1 on the following day.

D) From January 2, 2012 to February 2, 2012, Defendant 1 sent to Defendant 2, either directly or through the preliminary candidates of National Assembly members, internal data on the instant party register, etc., and, at the same time, publicized Nonindicted Company 4 to the preliminary candidates of National Assembly members, Defendant 1 linked to the provision of internal data on the instant party register, etc., including the instant party members list. In addition, Defendant 2 actively used the instant party members list received from Defendant 1 to conclude a contract for sending text messages on behalf of Defendant 1, and even sold it to the preliminary candidates of National Assembly members of ○○○○.

E) Defendant 1’s introduction, when a member of the National Assembly, preliminary candidate, etc. of ○○○○○ Party entered into a contract on the dispatch of text messages with Nonindicted Company 4, may receive certain revenues. Therefore, the circumstance that Defendant 1’s money received from Defendant 2 on February 1, 2012 and March 12, 2012 is merely a total of four million won, cannot be deemed as constituting a valuable circumstance that could deny the relationship with “illegal solicitation.”

Meanwhile, according to the witness’s statement in the court of first instance and the evidence No. 1 (Account No. 1) submitted by Defendant 2 by his defense counsel, Nonindicted Co. 4 temporarily employed Nonindicted Co. 23,24, and 25 as a equipment installation engineer on the condition that he would settle down after the election of a member of the National Assembly and pay the money in the name of payment. Upon the third party’s request for advance payment, it is recognized that he paid money in the form of advance payment from the national bank account in the name of Co. 4 of the first instance court. However, from Defendant 2’s standpoint, it is difficult to view that Defendant 1 and Nonindicted Co. 4 were in the same position, and even according to the above account transaction statement, Nonindicted Co. 23,24, and 25 did not have any remittance of KRW 4 million paid to Defendant 1, unlike Nonindicted Co. 4’s election of the member of the National Assembly. Therefore, the circumstance that Defendant 2 paid money from Nonindicted Co. 4 to Nonindicted Co. 24 to 24 and 25 million.

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

A. Summary of Defendant 1’s assertion

Defendant 1 received the request from Nonindicted 26, and there was no fact that he discovered or solicited any work related to the authorization and permission of △△○ Broadcasting, and KRW 20.1 million received from Nonindicted 26, which was paid by Defendant 1 on behalf of Nonindicted 26, was repaid with the golf cost and drinking value paid by Defendant 1 on behalf of Nonindicted 26.

Nevertheless, the lower court convicted Nonindicted 27 of this part of the facts charged by reliance on Nonindicted 27’s statement without credibility. Therefore, the lower court erred by misapprehending the facts and adversely affecting the conclusion of the judgment.

B. The judgment of this Court

(1) Relevant legal principles

In relation to co-offenders, a public offering does not require any legal penalty, but is a combination of two or more persons to realize a crime through a joint processing. A public offering is established even in cases where several persons are engaged in the combination of their intent either in a successive or secret manner. In addition, strict proof is required to recognize such public offering. However, in cases where the Defendant denies the public offering, which is a subjective element of the crime, it is inevitable to prove it by means of proving indirect facts or circumstantial facts having considerable relevance to the nature of the given object. What constitutes an indirect fact having considerable relevance in this context, the method of reasonably determining the link of facts through a thorough observation and analysis based on normal empirical rule (see, e.g., Supreme Court Decision 2011Do9721, Dec. 22, 2011).

(2) Determination

Based on the above legal principle, when comprehensively considering the following circumstances acknowledged by the evidence duly adopted and examined by the lower court, the lower court’s determination on this part is reasonable with this court’s conclusion. Accordingly, this part of the allegation by Defendant 1 is without merit.

(A) In an investigation agency and a court of original instance, Nonindicted 27, “Nonindicted 26 knows that Defendant 1 was the secretary on duty, who is his own branch, and Defendant 1 was in charge of the Korea Communications Commission, and Defendant 1 was unable to refuse to make a request. Accordingly, upon Defendant 1’s request, Nonindicted 26 in March 2009, requested Nonindicted 26 to resolve the issue of renewal of △△△△ Broadcasting’s license through Defendant 1. Nonindicted 26 requested Nonindicted 26 to Defendant 1. On March 30, 2009, Nonindicted 26 made a request for a conditional renewal of license by preparing money to request and demand money to be paid to Nonindicted 26 to KRW 10 million. In early 2010, Nonindicted 26 made a statement to Defendant 26 that “At the time, Defendant 1 was drinking or drinking with Nonindicted 26 along with Defendant 1.”

However, Nonindicted 27 has consistently stated the grounds upon which Nonindicted 27 asked Defendant 1 to pay the cost via Nonindicted 26, the background leading up to Nonindicted 26 to KRW 100 million, and the circumstances at the time when Defendant 1 met thereafter. In addition, it is difficult to find out any special grounds for Nonindicted 27 to make a false statement unfavorable to Defendant 1 even when he was punished for perjury. Therefore, it is obviously unreasonable for the lower court, which observed Nonindicted 27’s appearance and attitude toward Nonindicted 27, who was taking part in the witness examination procedure directly with respect to Nonindicted 27, who was taking part in the statement while carrying out the witness examination procedure with respect to Nonindicted 27, was clearly erroneous to recognize the credibility of Nonindicted 27’s statement in the lower court, or to maintain the lower court’s

(B) Until March 2009, Nonindicted 27 was in the state of 10 billion won or more in order to take over △△ Broadcasting, and when the permission was revoked because it was not renewed by the Korea Communications Commission, it was impossible to collect the already invested funds when the permission was revoked. However, Nonindicted 27 was heard by the lawsuit that it is difficult to renew the license of △△ Broadcasting around March 2009, and was placed in an urgent place where the public official in charge is required to obtain the renewed license even when making a solicitation.

(C) Around April 2009, Nonindicted 27 was under pressure due to Non-Indicted 26’s failure to prepare any balance to be paid in the public sale procedure of △△ Broadcasting stocks, and was under financial pressure. However, around April 7, 2009, Nonindicted 27 borrowed KRW 80 million from the land owner as a security on April 30, 2009, and provided KRW 20 million out of the amount borrowed as a security, and paid KRW 10 million to Nonindicted 26. In light of the relationship between Nonindicted 26 and Nonindicted 27, Nonindicted 27’s financial standing at the time, if Nonindicted 27 was under the pretext of the commission for the introduction of the PF that was in progress as stated in Nonindicted 26’s statement, it is difficult to understand that Nonindicted 27 was under the pretext of Nonindicted 27’s introduction of the loan, with Nonindicted 27’s funds borrowed up to KRW 100 million and paid.

In addition, if Nonindicted 27 delivered KRW 100 million to Nonindicted 26 as a commission for the introduction of the PF loan, Nonindicted 26 is the law that Nonindicted 62 Securities Company, the other party to whom the PF loan was conducted until the time, paid some of the funds to Nonindicted 61 division, etc. of Nonindicted 62 Securities Company. However, Nonindicted 26 did not pay money to the persons related to the PF loan, but remitted KRW 20.1 million to Defendant 1.

(D) On April 7, 2009, Nonindicted 26 remitted KRW 80 million from Nonindicted 27 to Defendant 1, as designated by Defendant 1 on the day of receiving KRW 80 million from Nonindicted 27, Defendant 1, the representative director of Nonindicted 28 Company registered as a director, to KRW 5 million, and KRW 5.1 million to Defendant 1’s account in the name of Nonindicted 30 who is Defendant 1, and KRW 5.1 million. In addition, around April 30, 2009, Nonindicted 26 transferred KRW 20 million to Nonindicted 27 and deposited the cashier’s checks into his account on May 4, 2009 (the employee’s day was May 1, 2009, and May 2 and 3, 2009, the financial institution did not operate its business on the day of May 1, 200 and KRW 5.5 million to each of the accounts designated by Defendant 1 in the name of Defendant 1.

As above, Nonindicted 26’s receipt of money twice from Nonindicted 27 and delivery of part of the money directly to Defendant 1 is an important circumstance in which the relationship between Defendant 1 and the above KRW 100 million is extremely strong. Therefore, if Defendant 1 was not related to the above KRW 100 million, Defendant 1 and Nonindicted 26 ought to have an explanation to be able to receive a large amount of KRW 20,100,000 between Defendant 1 and Nonindicted 26.

However, with respect to the above 20,100,000 won, Nonindicted 26 stated that “Defendant 1 asked to lend money from Nonindicted 27 before receiving money from Nonindicted 27, and received money from Defendant 1, who lent money from Defendant 27, and Defendant 1 loaned money from Defendant 1.” However, Defendant 1 stated that “ Nonindicted 26 received the above 20,100,000 won from Nonindicted 26 due to the lending of money to Nonindicted 26 or payment in lieu of the drinking value.” In addition, Nonindicted 26 made several transactions with Defendant 1 at the time of the prosecutor’s investigation, but it is difficult for Nonindicted 26 to easily obtain money from Defendant 1 and Defendant 160,000,000 won.” Thus, it is very low that Nonindicted 26 was erroneous as to the nature of the transaction, and that it is difficult for Defendant 1 to easily obtain money from Defendant 261 and Defendant 160,000 won.”

Therefore, it is difficult to recognize the credibility of Defendant 1 and Nonindicted 26’s above statements on the nature of KRW 20,100,000.

(E) Defendant 1 was arrested on April 23, 2012 due to the suspected fact that Nonindicted 26 received KRW 100 million from Nonindicted 27 in return for mediation, and was investigated by the prosecution on April 23, 2012, and Defendant 1 paid KRW 50 million to Nonindicted 1 (the Nonparty of the judgment of the Supreme Court) (the Nonparty of the Supreme Court) who was known through Defendant 2 through Defendant 2 in order to make a solicitation to the public official in charge not to proceed with the investigation, on April 25, 2012 and April 26, 2012. In addition, Defendant 1 remitted KRW 20 million to Nonindicted 32’s account, the father of Nonindicted 26, who was the father of Nonindicted 26, in the name of Nonindicted 31 on April 27, 2012.

If, as alleged by Defendant 1, Defendant 1 was not related to Nonindicted 26’s crime of good offices taking advantage of good offices, it is difficult to easily understand the reasons why Defendant 1 attempted to bring a large amount of money or assumed the cost of attorney appointment of Nonindicted 26.

(F) The overall purport of Nonindicted 27’s statement on the name of KRW 100 million against Nonindicted 26 is to be understood as having been the case concerning the past and future arrangements through Defendant 1 or his affiliated persons with respect to the renewal of △△ Broadcasting, and as Defendant 1’s defense counsel asserts, it does not appear that Defendant 1, etc. did not interfere with the renewal of △△ Broadcasting, even if Defendant 1’s defense counsel claimed.

4. Judgment on the part of aiding and abetting the Violation of the Attorney-at-Law Act

A. Summary of Defendant 2’s assertion

Defendant 2 assisted Defendant 1 upon Defendant 1’s request, and did not participate in Nonindicted 1’s criminal act, which is a principal offender for the crime of violation of the Attorney-at-Law Act.

Nevertheless, the judgment of the court below convicting this part of the facts charged is erroneous, which affected the conclusion of the judgment.

B. The judgment of the court below

After comprehensively taking account of the adopted evidence, the lower court determined that Defendant 2’s act constituted aiding and abetting Nonindicted 1’s crime of violation of the Attorney-at-Law Act, and that Defendant 2, as well as aiding and abetting Nonindicted 1’s act, could have been aware of the circumstances that facilitate Nonindicted 1’s crime of violation of the Attorney-at-Law Act due to his own act.

(1) Before becoming aware of Defendant 1, Defendant 2 was well aware with Nonindicted 1, and there was also a fact that Defendant 2 asked Nonindicted 1 to resolve the case in connection with the investigation.

(2) Defendant 2 introduced Nonindicted 1 to Defendant 1, and received money and valuables from Nonindicted 1 in return for solicitation to the persons concerned with the investigation agency, and distributed them to Defendant 1, the following amount. The act of directly receiving money from Defendant 1 to Nonindicted 1 is deemed to have made a substantial contribution to Nonindicted 1’s crime as well as Defendant 1.

(3) Although Defendant 2 did not directly receive money and valuables, Defendant 2 may obtain assistance in the business of Nonindicted Company 4 with the provision of a list of party members of this case or with the recommendation of the candidate, even though the investigation of Defendant 1 is well resolved, Defendant 1 may obtain assistance in the business of Nonindicted Company 4 with the provision of the list of party members of this case or with the recommendation of the candidate. In addition, Defendant 2 cannot be ruled out, along with Defendant 1, as well as Defendant 1, there is a need to block such possibility in advance. Accordingly, it cannot be said that there is no benefit from Defendant 1’s solicitation with Nonindicted Party 1.

(4) Although the Attorney-at-law Act does not separately punish a person who provided money or goods in the name of solicitation to a public official, this is merely the purport of not specifically punishing a person who requested another person to make a solicitation to a public official for his/her own interest, since the crime of violation of the Attorney-at-law Act is intended to protect the public’s trust in the performance of his/her duties. Therefore, it is difficult to interpret that a person who aided and abetted the offering of money or goods is not subject to punishment as well as a person who knowingly knowingly

C. The judgment of this Court

However, this decision of the court below is without merit for the following reasons.

(1) First, the lower court expressed the legal view that the purpose of the Attorney-at-Law Act, which did not provide for punishment for a person who provided money or goods in the name of solicitation to a public official, is not to punish a person who aided or abetted an act of offering money or goods in the name of solicitation to

However, the act of aiding and abetting under the Criminal Act refers to all direct and indirect acts that facilitate the principal offender's act while knowing the fact that the principal offender is committing the crime (see Supreme Court Decision 2009Do1518, Jun. 11, 2009). Article 32(1) of the Criminal Act provides that an aiding and abetting crime shall be established based on the premise that the principal offender is in existence. Therefore, the above opinion of the court below is unreasonable.

(2) On the other hand, the intention of aiding and abetting so-called aiding and abetting a principal offender to be established and the principal offender’s act constitutes an act that constitutes a constituent element shall have the principal offender’s intent (see Supreme Court Decision 2003Do6056, Apr. 29, 2005, etc.).

Therefore, if Defendant 2 did not be subject to punishment, but Defendant 1’s intent to facilitate the provision of money and valuables to Nonindicted 1 and introduced Nonindicted 1 to Defendant 1, etc., Defendant 2 cannot be punished as an aiding and abetting offender.

(3) However, in full view of the evidence duly adopted and examined by the court below and the following circumstances recognized by the record, it cannot be readily concluded that Defendant 2 committed an act that facilitates Nonindicted 1’s crime with the intent of facilitating Nonindicted 1’s crime of violation of the Attorney-at-Law Act only with the evidence submitted by the prosecutor (Supreme Court Decision 80Do2566 Decided September 14, 1982, which is cited by the prosecutor, is related to the case where the Defendant introduced a person to offer money to the principal offender for the crime of violation of the Attorney-at-Law Act upon the request of the principal offender for the crime of violation of the Attorney-at-Law Act and delivers money and valuables to the principal offender for the crime of violation of the Attorney-at-Law.

(A) On April 24, 2012, Defendant 2 received from Defendant 1 a question from Defendant 1 as to whether he/she is a person related to the prosecution regarding the case of receiving money and valuables on the grounds of solicitation related to the renewed permission of △△ Broadcasting, Defendant 2 introduced Nonindicted 1, who was known to the general public, to Defendant 1.

On the other hand, if there is a person in need of solicitation of the public official in charge of criminal cases, etc. against Defendant 2 in his/her reputation, there is no evidence to recognize that Nonindicted Party 1 introduced to himself/herself and asked to do so.

(B) Defendant 1 stated that Defendant 1’s statement is inconsistent with Defendant 1 and 2’s statement on the grounds that the amount of money paid to Nonindicted 1 as a public official’s solicitation was determined as KRW 50 million. In other words, Defendant 2 demanded KRW 50 million to Defendant 1 on the spot on April 25, 2012 at the prosecution’s investigation. Defendant 1 and Nonindicted 1 demanded KRW 50 million to Defendant 1. Defendant 1 was how to collect cash, and said, Nonindicted 1 made a statement on how to deposit KRW 10 million first and to deposit KRW 40 million following that date. However, Defendant 1 stated that “Nonindicted 1 and Nonindicted 20 million on the wife was about KRW 1 and KRW 30 million.” However, Defendant 2 demanded KRW 50 million on the following day and made a statement on the part of Defendant 2 demanded KRW 50 million.”

However, even according to each of the above statements by Defendant 1 and 2, it cannot be deemed that Defendant 2 committed an adjustment on the amount of money that Defendant 1 would have to pay to Nonindicted 1 in the middle, and there is no other evidence to acknowledge otherwise. Therefore, the lower court found that Defendant 2 delivered the fact of Nonindicted 1’s demand for money and valuables to Defendant 1, and that the amount was adjusted accordingly, and that there was no error in matters of violation of the rules of evidence.

(C) Defendant 2: (a) withdrawn full amount of KRW 50 million remitted from Defendant 1 in cash; and (b) delivered it to Nonindicted 1 as is; and (c) there was no fact that there was no economic benefit, such as receiving part of the money distributed from Nonindicted 1.

The lower court, on the grounds stated in its reasoning, cannot be deemed to have no benefit from Defendant 1’s solicitation with Nonindicted Party 1, and thus, based on the grounds for conviction. However, there is room to view it as the motive or reason for Defendant 2 to request the public official in charge of Nonindicted Party 1 to make a solicitation for Defendant 1 on the part of Defendant 1.

(D) Even though Defendant 1 had ordered Nonindicted Party 1 to conduct a search and seizure of Nonindicted Party 1’s residence on May 9, 2012, Defendant 1 followed Nonindicted Party 2 on what Nonindicted Party 1 would substitute. Accordingly, Defendant 2’s confirmation of the circumstances and recording of the conversation among the two persons, and based on the recording of the recording of the recording file, it is only recognized that Defendant 2 did not confirm the progress of the investigation for Defendant 1, or told Nonindicted Party 1 to the effect that Defendant 1 would cause Defendant 1 to go to Defendant 1, and there was no circumstance in which Defendant 1 would resolve the problem.

(E) On April 23, 2012, immediately before introducing Nonindicted 1 to Defendant 1, Defendant 2 delivered KRW 200,000,000 to Nonindicted 1 upon the request of Nonindicted 1 to prevent him from being indicted as a suspect for a violation of the Punishment of Tax Evaders Act. As such, when requesting the public official’s request for a solicitation, Defendant 2, who was in the position of providing money and valuables to Nonindicted 1 in return, had Nonindicted 1 expressed his intention to assist him to receive money in the name of solicitation from Nonindicted 1, and there is no way or reason to easily discover that Nonindicted 1 would receive money and valuables.

D. Sub-committee

Ultimately, the lower court’s judgment that found the Defendant guilty of this part of the facts charged is erroneous by misapprehending the legal doctrine on aiding and abetting a fact, thereby adversely affecting the conclusion of the judgment

5. Determination on the assertion of unreasonable sentencing

A. Defendant 1

(1) Summary of the assertion

(A) Defendant 1

The punishment sentenced by the court below to Defendant 1 (one year and six months of imprisonment, additional collection 20,000 won) is too unreasonable.

(B) Prosecutor;

The sentence imposed by the court below on Defendant 1 is too unhued and unreasonable.

(2) Determination

Defendant 1 disclosed not only the name of party members, but also the list of party members of this case containing sensitive personal information, including their addresses and telephone numbers, and the number of party members whose personal information was leaked reaches approximately 2.2 million. In addition, Defendant 1 received 4 million won in return for receiving illegal solicitation from Defendant 2, including the provision of the list of party members of this case. Furthermore, Defendant 1 received 10 million won in collusion with Nonindicted 26, who received 10 million won as a broker for public officials, and received 20.1 million won as a broker for public officials, thereby impairing the fairness in the performance of public officials’ duties and the trust of the general public. Nevertheless, Defendant 1 did not seriously divided her mistake into one another, and did not pay her attention to the defense for the victim. Accordingly, Defendant 1’s liability for a crime is not less than that of Defendant 1.

However, since the Personal Information Protection Act, which applies to Defendant 1’s act of leakage of personal information, etc., was enforced on September 30, 201, there is room for Defendant 1 to have not been fully aware of the illegality or seriousness of the act of leakage, etc. of personal information. Moreover, as to the case of leakage of the party members List up to the present day, it appears that there was no specific damage to the relevant party members. Meanwhile, in the case of the crime of leakage of personal information, Nonindicted 26 led it, and Defendant 1 does not seem to have actually mediated the public officials in charge of the Korea Communications Commission. Furthermore, in the case of the crime of breach of trust, the amount received in return for the illegal solicitation is relatively relatively much much. Furthermore, Defendant 1 supported a pregnant mother with a good health condition, who was dismissed from the ○○○○○○○○○○ branch, and Defendant 1 was not subject to the punishment of a fine once in addition to the punishment of a previous crime, and Defendant 1 was clearly aware of the social relationship between Defendant 1 and its employees including the director-general.

In addition, when comprehensively considering all elements of sentencing, such as Defendant 1’s age, character and conduct, environment, etc., the sentence of the lower court cannot be deemed to be too somewhat weak compared to the degree of Defendant 1’s liability, and it is rather unreasonable.

This part of the defendant 1's argument is with merit, and this part of the prosecutor's argument is without merit.

B. Defendant 3

(1) Summary of the assertion

(A) Defendant 3

The punishment of the court below (7 million won of fine) imposed on Defendant 3 is too unreasonable.

(B) Prosecutor;

The punishment sentenced by the court below to Defendant 3 is too unhued and unreasonable.

(2) Determination

Defendant 3 had a duty to strictly manage the list of party members belonging to ○○○○ Group of Organization 1 Team. However, even though Defendant 3 had a duty to strictly manage the list of party members of this case, Defendant 3 leaked not only the list of party members containing sensitive personal information, such as name, address, and telephone number of party members from around 220,000, but also committed the crime repeatedly and repeatedly. Therefore, Defendant 3’s criminal liability is not somewhat weak.

However, Defendant 3 did not refuse Defendant 1’s request, who is his superior interest and interest, and caused the instant crime, and there are some circumstances to be taken into account in its circumstances. Moreover, there is a doubt that Defendant 3 does not gain personal benefits through the instant crime, but there is insufficient evidence to readily conclude it. Moreover, there is no criminal power against Defendant 3.

In addition, when comprehensively considering all elements of sentencing, such as Defendant 3’s age, character and conduct, environment, etc., the lower court’s sentence is not deemed to be too heavy or unreasonable compared to the degree of Defendant 3’s criminal liability.

Defendant 3 and prosecutor’s allegation in this part is without merit.

6. Conclusion

A. The reversed part

Of the judgment of the court below, there exist grounds for reversal of the part on Defendant 1 and the part on aiding and abetting the violation of the Attorney-at-Law Act by Defendant 2. However, since the crime of aiding and abetting the violation of the Attorney-at-Law Act by Defendant 2 and each of the remaining crimes were deemed to be concurrent crimes under the former part of Article 37 of the Criminal Act, the part on Defendant 2 in the judgment of the court below as to Defendant 2 cannot be exempted from the whole reversal. Therefore, without examining the prosecutor’s assertion of unfair sentencing and the prosecutor’s decision on unfair sentencing with respect to Defendant 2, the part on Defendant 1 and

B. The part dismissing the appeal

The appeal by the defendant 3 and the prosecutor against the defendant 3 is dismissed as it is without merit.

Criminal facts

Defendant 1 and 2’s criminal facts acknowledged by this court are identical to the corresponding part of the judgment below’s “criminal facts” with the exception of deletion of “Article 6(c) of the Attorney-at-Law Act” (help for the violation of the Attorney-at-Law Act).

Summary of Evidence

The summary of the evidence presented by this court concerning the criminal facts of the defendant 1 and 2 is the same as the summary of the judgment of the court below.

Application of Statutes

1. Article applicable to criminal facts;

○ Defendant 1: Article 71 subparag. 5 and Article 59 subparag. 2 of the Personal Information Protection Act; Article 30 of the Criminal Act (a disclosure of personal information known to the public in the course of performing his/her duties or provision of such information to another person without authority) Article 71 subparag. 6, Article 59 subparag. 3, Article 30 of the Criminal Act (a divulgence of another person’s personal information without legitimate authority); Article 3 of the former Act on the Aggravated Punishment, etc. of Specific Crimes (amended by Act No. 10210, Mar. 31, 2010; hereinafter the same shall apply); Article 30 of the Criminal Act (a) Article 357(1) of the Criminal Act (including giving and receiving money and valuables under the pretext of good offices for public officials); Article 357(1) of the Criminal Act

○ Defendant 2: Article 71 subparag. 5 and Article 59 subparag. 2 of the Personal Information Protection Act; Article 30 of the Criminal Act (the provision of personal information for profit-making or illegal purposes at the market, the provision of personal information to a third party or the provision of personal information to a third party without authority) Article 72 subparag. 2 and Article 59 subparag. 1 of the Personal Information Protection Act; Article 30 of the Criminal Act (the acquisition of personal information by illegal means or means) of the Personal Information Protection Act; Articles 71 subparag. 3 and 23 of the Personal Information Protection Act; Article 30 of the Criminal Act; Article 357(2) and (1) of the Criminal Act (including the provision of personal information for profit-making or unjust purposes at the market; Article 5-A of the Criminal Act)

1. Commercial competition;

○ Defendant 1: Articles 40 and 50 of the Criminal Act (a person who, without authority, divulges or provides another person with personal information known to him/her in the course of performing his/her duties without authority) (a person who, without authority, divulges or divulges another person’s personal information without authority, commits a violation of each Personal Information Protection Act; and a person who, without authority, divulges or provides another person with personal information which comes to his/her knowledge of duties with heavy business circumstances; a person

○ Defendant 2: Articles 40 and 50 of the Criminal Act (a crime of violating the Personal Information Protection Act due to the provision of personal information for profit or for an illegal purpose, and a crime of violating the Personal Information Protection Act due to the acquisition of personal information by unlawful means or means, and a punishment prescribed for a crime of violating the Personal Information Protection Act due to a heavier profit or an unjust purpose

1. Selection of punishment;

Each Imprisonment Selection

1. Aggravation of concurrent crimes;

○ Defendant 1: the former part of Article 37, Article 38(1)2, and Article 50 of the Criminal Act (Aggravated Punishment, etc. of Specific Crimes (Aggravated Punishment, etc. of Specific Crimes (Aggravated Punishment, etc. of Specific Crimes)

○ Defendant 2: The former part of Article 37, Article 38(1)2, and Article 50 of the Criminal Act (the disclosure of personal information known to the public in the course of performing his/her duties as stated in the Decision No. 5 with the largest offense and offense)

1. Suspension of execution;

Article 62 (1) of the Criminal Code

1. Confiscation (as to the defendant 2):

Article 48 (1) 1 of the Criminal Act

1. Collection (as to the defendant 1);

Article 13 of the former Act on the Aggravated Punishment, etc. of Specific Crimes and Article 357 (3) of the Criminal Act

* KRW 24,100,000 (= KRW 20,100,000 distributed to Defendant 1 among the KRW 100,000,000,000 distributed to Defendant 2 in collusion with Nonindicted 26, in order to arrange matters belonging to public official’s duties by Nonindicted 27, + KRW 4 million received in return for illegal solicitation by Defendant 2)

Reasons for sentencing

1. Defendant 1

same as the entry in paragraph (1) above.

2. Defendant 2

In order to obtain more business profits, Defendant 2 asked Defendant 1 to obtain information on the instant party members list, etc. containing sensitive personal information, such as the name of party members, address, and telephone number, and paid KRW 4 million to Defendant 1 in return. In addition, Defendant 2 compiled the list of party members of the instant case that was provided by Defendant 1 for each region and sold them to the preliminary candidate of the National Assembly member of ○○○○○○○○○○○○○○○○ Party. Furthermore, Defendant 2 was sentenced to a suspended sentence due to the violation of the Petroleum and Petroleum Substitute Fuel Business Act and did not know even during the suspended sentence period, and committed each of the instant crimes. Accordingly, Defendant 2’s liability is not easy.

However, since the Personal Information Protection Act was enforced for a long time, there is room for Defendant 2 not to fully recognize the illegality or seriousness of his/her act, such as leakage of personal information. Moreover, it seems that the leakage of a list to the present party members did not specifically cause any damage to the relevant party members. Furthermore, Defendant 2 shows an attitude against all of the acts of violation of the Personal Information Protection Act during the trial, and there is no same criminal records.

In addition, in comprehensive consideration of all the sentencing factors shown in the pleadings, such as the age, character and conduct, environment, etc. of Defendant 2, the punishment against Defendant 2 shall be determined as ordered.

Parts of innocence

1. Summary of the facts charged

From April 2012, the public prosecutor belonging to the Suwon District Public Prosecutor's Office conducted a full-time investigation into the violation of the Act on the Aggravated Punishment, etc. of Specific Crimes against Non-Indicted 26, and accordingly, Non-Indicted 26 was arrested on April 23, 2012 and detained on April 26, 2012 and issued a detention warrant. Accordingly, Defendant 1, who is the accomplice of Non-Indicted 26, was involved in the same business relationship with Defendant 2 who was actually in the same business relationship.

Defendant 2, as a result of the investigation of the above case, lost the status of ○○○○ Party, including Defendant 1’s disciplinary action, thereby preventing any trouble in Defendant 1’s character business and election-related business through Defendant 1, and concealing the fact that Defendant 1 received money and valuables from Nonindicted 26 in the name of △△ Broadcast, Defendant 2 prevented the investigation process related to the above case, and, in return, attempted to introduce a person who will receive money and valuables to Defendant 1.

Around April 25, 2012, Defendant 2 introduced Nonindicted 1 (the Nonparty of the judgment of the Supreme Court) (hereinafter “Nonindicted 1”) to Defendant 1 at the coffee shop near the Seo-gu, Daejeon ( Address omitted), which is one of the non-indicted 4’s own region, and which is the main part of the investigation of the above case, “It is necessary to find out the fact that there is a request from the prosecutor through the non-indicted 1 to the investigation agency such as the prosecution, and there is a need to stop the investigation, and the money and valuables to be delivered to the non-indicted 1.” At that time, Defendant 1 received KRW 10 million from the non-indicted 33’s account under the name of the non-indicted 31 who is managed by the defendant 2 through the non-indicted 31’s pro rata 31, and received KRW 50 million from Defendant 1 to Defendant 2 in cash and then withdrawn KRW 15 million in return for the above request, Defendant 200,000.”

Accordingly, Defendant 2, despite being aware of the circumstances in which Nonindicted 1 received money and valuables from Defendant 1 on the pretext of solicitation for a case dealt with by a public official as above, introduced Defendant 1 to Nonindicted 1 as above, and received money from Defendant 1 through his own borrowed account, and aided and abetted Nonindicted 1’s crime of violation of the Attorney-at-Law Act by way of making it easier for Nonindicted 1 to commit the act of violation of the Attorney-at-Law Act by finding it in cash.

2. Determination

As seen earlier, this part of the facts charged constitutes a time when there is no proof of the crime, and thus, is acquitted under the latter part of Article 325 of the Criminal Procedure Act

Judges Lee Sung-sung (Presiding Judge)

(1) On April 30, 2013, Defendant 2 withdrawn the previous assertion on the violation of the Personal Information Protection Act during the second trial of the first instance court held on April 30, 2013, and recognized all the facts charged.

심급 사건

-수원지방법원 2013.1.2.선고 2012고합545

서울고등법원 2013.5.30.선고 2013노613

-대법원 2014.1.16.선고 2013도6969

원심판결

-수원지방법원 2013. 1. 2. 선고 2012고합545 판결

본문참조판례

-대법원 1982. 9. 14. 선고 80도2566 판결

-대법원 1992. 6. 12. 선고 92도873 판결

-대법원 2001. 9. 28. 선고 2001도4091 판결

-대법원 2003. 3. 25. 선고 2003도301 판결

-대법원 2005. 4. 29. 선고 2003도6056 판결