[1] The meaning of "amount of profit" under Article 3 (1) of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes

[2] Requirements for multiple occupational embezzlements to constitute a "general crime"

[3] In a case where Gap corporation entered into an agreement with various agencies affiliated with the Ministry of Knowledge Economy and received 9 government contributions for each subject, and the defendant, the representative director of Gap corporation or the officer in charge of funds, disposed of funds contrary to the entrusted intent, the case holding that the court below erred in the misapprehension of legal principles in holding that Article 3 (1) 2 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes can be applied by deeming the defendants' crime as an inclusive crime of occupational embezzlement

[1] Article 3(1) of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes provides that a person who commits a specific property crime shall be punished aggravatingly when the value of the goods or profits on property acquired or made another person acquired as a result of the crime (hereinafter referred to as "amount of profit") is not less than 500 million won. The "amount of profit" referred to in this context refers to the sum of the amount of profit where the crime of simple crime is constituted, or where the crime of single offense is established, the sum of the amount of profit, and it does not mean

[2] In order to become a single crime by including multiple occupational embezzlements, the legal benefits of damage are single, the same pattern of crime is identical, and it should be recognized as a series of acts due to the realization of a single criminal intent.

[3] The case holding that the court below erred in the misapprehension of legal principles as to the elements for the establishment of a blanket measure by applying Article 3 (1) 2 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes, on the ground that the defendants' act infringed upon a separate consignment relationship by task and thus it cannot be deemed that the legal interest of damage is uniform, and it is hard to recognize a single criminal intent as well, on the ground that the defendants' act is based on the same consignment relationship, on the premise that the government contribution was based on the whole consignment relationship, and thus, the defendants' act constitutes one crime of occupational embezzlement, including one crime of occupational embezzlement, and the total amount of embezzlement is more than 50 million won, and thus, the court below erred in the misapprehension of legal principles as to the elements for the establishment of a comprehensive measure of an aggravated punishment by applying Article 3 (1) 2 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes.

[1] Article 37 of the Criminal Code; Article 3 (1) of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes / [2] Articles 37, 355 (1), and 356 of the Criminal Code / [3] Articles 30, 355 (1), and 356 of the Criminal Code; Article 3 (1) 2 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes

[1] Supreme Court Decision 93Do743 delivered on June 22, 1993 (Gong1993Ha, 2193), Supreme Court Decision 2000Do28 delivered on March 24, 200 (Gong2000Sang, 1107), Supreme Court Decision 2000Do1899 Delivered on July 7, 200 (Gong200Ha, 1911) / [2] Supreme Court Decision 2003Do6738 delivered on October 27, 2004 (Gong2005Ha, 1731)

Defendant 1 and three others

Defendants

Attorney Han-hwan et al.

Seoul High Court Decision 2009No1122 decided July 29, 2009

The part of the lower judgment against Defendant 3 and 4 is reversed, and that part of the case is remanded to the Seoul High Court. Defendant 1 and 2 are all dismissed.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. As to Defendant 1 and 2’s grounds of appeal

Article 2 Subparag. 2 of the Unfair Competition Prevention and Trade Secret Protection Act provides that "any trade secret means any production method, sale method, and other technical or managerial information useful for business activities, which is not known to the public, and has an independent economic value." Here, "no known to the public" means any information that is not known to many and unspecified persons by considerable effort, such as the production method, sale method, and other information that is useful for business activities." The term "no known to the public" means any information that cannot be ordinarily obtained without going through a holder, because it is not known to the general public, such as publication, etc., and "the person who has independent economic value" means that a person who owns the information can benefit from competition with the competitor through the use of the information, or that considerable expenses or effort is needed for the acquisition or development of the information, and "the information shall be kept confidential by considerable effort" means that the information is objectively maintained and managed as confidential, such as where the person who has access to the information, or where the person who has access to the information, should be kept confidential (see, e.g., Supreme Court Decision 2008Do408).

The court below cited the judgment of the court of first instance. ① The information contained in the data of this case is the information on the manufacture, etc. of PEC (ELC), which is the core business of the non-indicted corporation. ② The non-indicted corporation sought measures to prevent leakage of technical information or business information including the instant information by submitting written pledges, etc. from its employees or partner companies; ③ the non-indicted corporation was making considerable time and effort to obtain the instant information, and its information itself is the optimal technical information and business information appropriate for the situation of the non-indicted corporation. ④ The court below determined that the non-indicted corporation’s business plan was also used as data to develop the same level of products as that of the non-indicted corporation by investing the minimum time and cost, and establish a business strategy to occupy and use the information of this case from the non-indicted corporation in competition with the non-indicted corporation. ⑤ If the information of this case is disclosed to the public and can be acquired easily through legitimate methods, the court below determined that the non-indicted corporation’s business plan was not subject to the non-indicted corporation 1’s new information.

Examining the evidence adopted by the court of first instance as cited by the court below in light of the reasoning of the judgment below and the above legal principles, the court below's above fact-finding and judgment are just, and there is no error in the misapprehension of legal principles as to trade secret requirements or in violation of the principle of free evaluation of evidence against logical and empirical rules.

On the other hand, the remaining grounds of appeal by the above Defendants are nothing more than a ground for fact-finding which belongs to the full power of the fact-finding court, or they cannot be accepted on the premise that the instant information is not trade secrets.

2. As to Defendant 3 and 4’s grounds of appeal

Article 3(1) of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (hereinafter “Special Economic Crimes Act”) provides that a person who commits a specific property crime shall be subject to aggravated punishment when the value of the property or profit from property acquired or let a third party acquire as a result of the crime (hereinafter “amount of profit”) is at least 500 million won. The “amount of profit” referred to in this context refers to the sum of the amount of profit in a simple crime or the amount of profit in a case where a single crime is established, and it does not mean the sum of the amount of profit in a crime that can be punished as concurrent crimes (see Supreme Court Decisions 93Do743, Jun. 22, 1993; 2000Do28, Mar. 24, 200). Meanwhile, in order to become a single crime by combining several business embezzlements, the damage legal profit is the same as the one in a single crime, and it shall be recognized as a series of acts that are due to the formation of a single crime (see, e.g., Supreme Court Decision 2005Do98).

According to the facts cited by the court of first instance as cited by the court below, the non-indicted stock company was granted nine government tasks from the Korea Institute of Industrial Technology Evaluation and Planning, the Electronic Parts Research Institute, and the Korea Parts & Materials Industry Promotion Institute, etc. under the Ministry of Knowledge Economy every nine times from August 2003 to August 2008, and each government tasks were granted. The above government tasks were selected and entered into an agreement by government tasks based on different Acts and subordinate statutes at different times. The contents and the period of each government tasks are different, and each government tasks are different in both the contents and the period of each government tasks are different, and the government contributions provided by each government tasks are deposited into a separate financial account and used only for the designated purpose and purpose of each individual task. In light of these facts, it is reasonable to view that the above individual government contributions are separate from the government contributions of the non-indicted corporation and the representative director of the government affiliated with the above non-indicted corporation and the government affiliated with the above non-indicted corporation, and thus, it is difficult to recognize the specific government contributions of this case.

However, according to the reasoning of the judgment below, the court below affirmed the judgment of the court of first instance, which held that the above government contributions of this case can be aggravated by applying Article 3 (1) 2 of the Act on Special Cases and applying Article 3 (1) 2 of the Act on Special Cases, since the embezzlement of government contributions of this case constitutes a single occupational embezzlement and the total sum of the embezzlement amounts exceeds 500 million won, on the grounds that both the above government-affiliated agencies are entrusted with the affairs of the Minister of Knowledge Economy and the payment of government contributions also has the final approval authority of the Minister of Knowledge Economy.

The above measures by the court below are erroneous in the misunderstanding of legal principles as to the elements for establishing a single comprehensive crime, and in the case where the embezzlement amount for each government task separately is less than the amount prescribed in Article 3 (1) of the Special Economic Crimes Act, the above unlawful acts in this case shall be deemed to have influenced the judgment.

The above Defendants’ ground of appeal pointing this out is with merit.

3. Scope of reversal

As seen above, the judgment of the court below which found Defendant 3 and 4 guilty of the charge of violation of the Act on Special Cases concerning the Punishment of Defendants 3 and 4 should be reversed, and the court below affirmed the judgment of the court of first instance which sentenced each of the above Defendants on the ground that this part of the facts charged and the remaining facts charged against the above Defendants are deemed to be concurrent crimes under the former part of Article 37 of the Criminal Act, and thus, it should be reversed in its entirety.

4. Conclusion

Therefore, without further proceeding to decide on the remaining grounds of appeal by Defendants 3 and 4, the part against Defendants 3 and 4 among the judgment below is reversed, and this part of the case is remanded to the court below for further proceedings consistent with this Opinion. Defendant 1 and 2 are all dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Poe-dae (Presiding Justice)