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부산고등법원 2017.06.15 2016노740

배임수재

Text

The judgment below

The part against Defendant A, B, and C and the part against Defendant D as stated in the judgment of Defendant D (the agency contract for the sale of membership rights).

Reasons

1. Summary of grounds for appeal;

A. Defendant A1) misunderstanding of the legal principles, Defendant A, B, and D’s act of taking property in breach of trust as stated in paragraph (1) of the criminal facts stated in the judgment below, which were received from Defendant C through the crime of taking property in breach of trust as stated in the judgment below, most of them were reverted to Defendant B and D.

Nevertheless, the lower court levied on Defendant A an amount (6,567,36 won) equivalent to 1/3 of the aforementioned “reward rebates” on the grounds that the amount actually acquired by Defendant A, B, and D among the above “reward rebates” could not be specified. In so doing, the lower court erred by misapprehending the legal doctrine on the collection of a surcharge, thereby adversely affecting the conclusion of the judgment.

2) The punishment sentenced by the lower court to Defendant A (a year of imprisonment, an additional collection of KRW 162,220,356) is too unreasonable.

B. Defendant B, D1 is erroneous in the misapprehension of the legal principle or misunderstanding of the legal principle) The part (Defendant B, D) related to the contract for the sale of membership cards in the lower judgment regarding the conclusion of the contract for the sale of membership cards, and Defendant B, and D do not receive any unlawful solicitation as stated in the lower judgment, and there is no omission in receiving the “reward” as stated in the lower judgment.

Nevertheless, the court below found Defendant A and C guilty of all the facts charged by taking each of the statements in the investigation agency and court of original instance without credibility. The court below erred by misapprehending the facts or by misapprehending the legal principles, which affected the conclusion of the judgment.

B) The part of the crime of taking property in breach of trust (defendant D) related to the lighting project as indicated in the judgment of the court below did not receive any unlawful solicitation from Defendant C and V in relation to the conclusion of the lighting project contract as indicated in the judgment of the court below, and there was no omission of receiving any reward in the amount of KRW 50 million as stated in the judgment of the court below.

Nevertheless, the court below followed each of the statements in the investigation agencies of Defendant A, C, and V and in the court of original instance, which are not reliable.