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부산고등법원 2017.09.28 2017노348

배임수재

Text

The judgment below

Of them, the part on Defendant B shall be reversed.

Defendant

B A person shall be punished by imprisonment for six months.

except that this judgment.

Reasons

1. Summary of grounds for appeal;

A. According to the evidence submitted by the prosecutor including the prosecutor's mistake of facts (as to Defendant A), the representative director of the F Co., Ltd. (the part not guilty in the reasoning of the judgment below) (hereinafter "F"), G and H's prosecutor's office and its employee, and each of the statements in the court of original trial, the court below found Defendant A guilty of all the facts charged. However, the court below found Defendant A not guilty of part of the facts charged in this case on the grounds as stated in its reasoning. The court below erred by misapprehending the facts and affecting the conclusion of the judgment.

2) The punishment sentenced by the lower court to Defendant A (such as penalty amounting to KRW 10 million) is too unhued and unreasonable.

B. Defendant B (A) did not receive a request from L, a business employee of F, to supply “M (I)” without bidding. Defendant B did not receive a request from L, a business employee of F.

B) At the prosecutor’s office and the court below’s court, L stated to the effect that Defendant B, first of all, prescribed “M” to L, which changed the amount of KRW 80,00 per “1 ice (vial, prescribed unit)”. However, Defendant B did not have any such demand to L.

C) From May 2014 to August 2015, L made a statement at the lower court to the effect that Defendant B paid the total of KRW 44.8 million (i.e., KRW 2.., KRW 2.8 million per month x 16 times) on 16 occasions from May 1, 2014 to the first police officer upon the prescription of “M” (i.e., KRW 2.8 million per month x 16 times). The lower court, based on the same L’s statement, received the said L’s statement from May 1, 2014 to August 2015, that Defendant B received KRW 4.8 million in total from L to “the rebates” under the “M”’s prescription.

Although Defendant B did not receive any money equivalent to the amount of the rebates from the prescription of “M” (Defendant B’s appellate brief submitted by his defense counsel) is clearly stated in the grounds for appeal that Defendant B received the rebates from L in accordance with the prescription of “M”.