(영문) 서울중앙지방법원 2017.11.23. 선고 2017고합499 판결

As the representative director B, the Defendant is a non-official broker under a contract under which C Co., Ltd. (hereinafter referred to as “C”) exports three diving boxes to D Government (hereinafter referred to as “divers of this case”), and F is a C representative director from March 7, 2006 to March 29, 2012, and C representative director from March 30, 2012 to April 1, 2014. The Defendant is a person who, in the process of the highest manager of G School around March 2007, only maintains personal friendship after having first met F and has no official relationship, such as entering into an employment contract with C or being designated by C as his/her agent.

1. From around September 2010, H (hereinafter referred to as "H") has been promoting the export business of the D government that was built from around 2003 to be exported from the D government, and H has been acquired and merged to J, and C has been directly in charge of the building and export business of the instant diving. Meanwhile, around October 2010, the Defendant was selected as the broker of D military supplies (K; hereinafter referred to as "K") by the D military supplies intermediaries in the D government as the intermediary of D military supplies (transfer) and was selected by the D military supplies intermediaries in the D government as the intermediary of D government, and it was so proposed that "if it is difficult for the K government to negotiate and negotiate with CF because it was well known that CF was the president, it would be difficult for C to enter into the instant contract with the K president in return for the request for its export.

In addition, the defendant around that time, F played the role of K's transfer to the Korean side in relation to the export business of the diving of this case. K's hidden partnership. There is a relationship between the Republic of Korea and Japan.

In order to select B from the K as a transfer to the Korean side, I would like to see who will be friendly to who is fluorous to who is fluorous to who is fluorous to who is fluorous to who is fluorous to whom the inside will will not be fluored by a simple request. However, between the critical circumstances, I made an illegal solicitation that “the inside will be requested directly by telephone,” and the F accepted it. Furthermore, by considering that the Defendant could exercise F's influence by using F's f's f's f's f's f's f's f's f's f's f's f's f's f's f's f's f's f's f's f's f's f's f's f's f's f's f's f'.

On the other hand, around June 201, the Diplomatic Chief of Staff sent a letter to the effect that the other D local intermediaries in competition with K would request L to nominate a new broker through the D Embassy. L has confirmed whether the said broker's replacement or additional demand is an official entry of the D government, and if the D government requests replacement or addition of a broker, the D government made a determination of the D Navy Chief of Staff and the M&D agreement (hereinafter referred to as the "UU of this case") around July 9, 201 in order to collectively resolve the difficulties related to the negotiation on the right to select equipment for diving, etc. in return for acceptance.

However, in the event that L and D Navy Chief of Staff concluded negotiations on the diving of this case on behalf of other D local brokers, as seen above, L and D Navy Chief of Staff would lose their status as an existing mediator and would be at all receive brokerage fees or would have been expected to be paid in the future. Accordingly, K demanded that the defendant be called "I will leave the phone to F so that L and D Navy Chief of Staff can no longer meet the above requirements," and if the defendant fails to fulfill the above requirements against F, the defendant would be expected to be unable to reduce the fees that he would receive from K in the future, and the defendant would be expected to be unable to receive from K in the future, and the phone call to F would not be sufficient to say that the L and D Navy Chief of Staff in relation to the diving export contract. It is now, and how it would be so big [I will not make any unlawful solicitation by the Chief of Staff before D and D Navy Chief of Staff.]

However, if the failure of this case was destroyed before the day according to the defendant's request, it was anticipated that the failure of this case will affect the trust relationship with the chief executive officer of the Jeju Navy and will cause losses to C in the future. In such a case, F would not arbitrarily destroy the instant failure, but would not arbitrarily destroy it, and if there is no time to follow such procedures with the relevant executive officer, etc., L would be able to analyze the advantages and disadvantages when responding to the negotiations, and thereafter, there was an occupational duty to deal with the affairs in the direction of benefit to C. However, F would have been in violation of the above duties to the effect that "30 US dollars 10,000,000,000,000 for the purpose of export of the defendant's illegal solicitation," and "30 US$ 10,000,000,000,000,000 for the purpose of 10 US dollars 10,000,000,000,000.

In addition, F’s exercise of such influence, C concluded a contract for export support service with D munitions intermediaries who hold office as the representative director on March 2012, and from December 2012 to April 2016, 2016, C paid USD 62,95,746 in total in 13 times as commission fees (based on an original KRW 67,59,890,373, and each payment date and time exchange rate) to the Defendant from January 2013 to October 2015.

2. Provision of money and valuables;

around March 1, 2013 to April 4, 2013, the Defendant: “F received the commission from D at a time; “I will hold to hold to hold to hold to hold to hold to hold to hold to hold to hold to the D; “F would change one account number; and F notified the Defendant of the Bank Singapore account in the name of University-Friendly NF. On the other hand, the Defendant received USD 809,99 ($ 880,468,913, exchange rate of KRW 1087.00) from K as the fee in return for mediating the contract as above around January 2013. On April 9, 2013, the Defendant transferred the above KRW 162,00 ($ 184,566,600, KRW 1,139.30) to the above account under the name of F, USD 205, USD 160, KRW 2085, KRW 1981, KRW 2085, KRW 184,251965.284,2845.2,2845.

As a result, the Defendant made an illegal solicitation on the duties such as selection of the F as the export broker, and conclusion of the brokerage contract, which is the representative director of C, and granted US$ 459,000 in return for the illegal solicitation.

Summary of Evidence

1. Partial statement of the defendant;

1. Each legal statement of witness F, L and M;

1. Recording notes;

1. Each protocol of suspect examination of the accused, F, and N by the prosecution;

1. An investigation report (in case of three or more contracts related to D divings, the outlines of obtaining contracts related to each process, the details of the amount of deposits, and the details of payment of increased amounts);

1. One copy of the progress of obtaining orders for the three new manufacturing businesses, the details of receipts by process, and the details of payment by expansion;

1. A copy of the contract entered into between the parties to a dispute settlement agreement as of December 20, 201, as of the copy of the Support Services, Lead Management, and On December 20, 201;

1. A copy of the name of NP bank account (Account Number Q) in the name of NP bank account, and R bank account information in the name of A;

1. The entry or departure status of each individual;

Application of Statutes

1. Article relevant to the facts constituting an offense and the selection of punishment;

Article 357(2) of the Criminal Act (generally, the choice of imprisonment)

1. Suspension of execution;

Article 62(1) of the Criminal Act (The following consideration of favorable circumstances among the reasons for sentencing):

1. Social service order;

Article 62-2 (1) of the Criminal Act

Judgment on the argument of the defendant and defense counsel

1. Summary of the assertion

A) If necessary to find F, the Defendant did not make a solicitation in order to assist the Defendant, or to prevent K’s loss of the status as a broker.

B) The Defendant only paid money to F retired from C at the time when requesting that F act as a broker for a new diving box introduction project to be undertaken in D in the future, and did not pay in return for solicitation.

C) Even if the Defendant made a solicitation as stated in the facts of the crime, it was the primary purpose of preventing delay in the conclusion of the contract due to the instant non-rating sexual history, and furthermore, it was merely requested to maintain the delegation relationship between K and C, and thus cannot be deemed as an illegal solicitation contrary to social rules and the principle of good faith.

2. Determination

A) Considering the following facts and circumstances as to the existence and purpose of solicitation, it may be recognized that the Defendant made a solicitation for the same purpose and content as stated in the facts constituting an offense.

① At around 2011, the Defendant consistently asked FF to offer one help and delivery to the effect of the decision-making order regarding the instant diving export contract. In the latter part of the latter part of 2011, the Defendant asked K and K to prevent L from communicating because the instant hosting, which is arranged by another broker, is not a broker upon the occurrence of a sexual intercourse. Following the date, the Defendant heard the horses that L did not meet from K and asked F to be forgotten upon the occurrence of a contract, and made a statement that F would not be forgotten upon the occurrence of a sexual intercourse.

② On March 2010, the Defendant asserted that, while receiving a request from K to assist in the export business of divings C on March 1, 2010, the Defendant made a statement to the effect that he/she would help C by not visiting F around May 2010. This is inconsistent with the allegation itself.

3 F was found to have been trying to help the Defendant in his office while the Defendant tried K in the prosecution. The F stated that the Defendant was aware that the Defendant would assist K and the Defendant, because the instant hosting would not have been tryed until that time, and thus, it would help K and the Defendant.

④ Comprehensively taking account of the following, K appears to have tried to form a direct brokerage relationship with C from the beginning of 2010 to the point of view that K had been trying to assist the Defendant. On the other hand, K was working as H’s intermediary, and there was no reason to request F to do so. On March 2010, the Defendant appeared to have sought F upon the request of K for assistance in the instant diving export business. Furthermore, the Defendant appeared to have worked as a witness at the 20th anniversary of K’s request on September 2010, 200 that K would not have been able to communicate with H’s merger with H and H. The Defendant appeared to have worked as a witness at the 10th anniversary of K’s request on September 2010, 200 that K would not have participated in the above 10th anniversary of K’s request to participate in the 20th anniversary of the 20th bidding.

B) Comprehensively taking account of the following facts and circumstances as to the nature of the consideration, the Defendant may recognize that he remitted to F in return for the above solicitation, and even if the intent was included in the intent to receive assistance from the export business of D diving boxes that will be carried out later, the conclusion does not change since it is indivisiblely combined with the nature of the consideration for solicitation.

① The Defendant stated that, upon F’s initiative’s cancellation of the instant hosting, he and K continued to act as a broker for the export contract of the instant diving box, the Defendant transferred money to the prosecution. (1)

② The F also stated in the prosecution that it would have been able to carry on personnel affairs because the Defendant was well aware of his business.

③ The Defendant and K maintained the position as an intermediary and was able to receive a large amount of fees for the F, and the Defendant also called the F as a member of the party on the following day of the revocation of the instant hosting.

④ Although F received money from the Defendant twice, there is no way to proceed with the Defendant or F with respect to the new diving export business, and there seems to be no material that the Defendant exchanged with K. In particular, F stated in this Court that “the specific content of F, such as the type of diving, ordered volume, model, and building content, has not been determined in relation to the new business.”

⑤ Even the Defendant asserts that he received USD 2,922,326 from K in relation to the export contract of the diving box of this case, the Defendant is merely merely the name of the Defendant’s payment for the expenses incurred by the Defendant and the expenses incurred for the export business of new diving boxes. In view of the fact that the Defendant, with respect to the export contract of the diving box of this case, only performed the duties such as respondings to and provision of transportation to D government-related persons visiting Korea, in relation to the export contract of the diving box of this case, it is too large that the Defendant

6. The time of solicitation and the time of remittance are far away, however, the above time interval does not interfere with the recognition of a quid pro quo, considering the fact that the defendant, after receiving the fee from K, only at intervals of about three months and nine months, and that the defendant and F did not have any difference between the defendant and F, and that the defendant remitted money after he/she made his/her speech that he/she will meet F.

7) Around June 12, 2016, the seizure and search of the F’s residence and the three days past, the Defendant told F and N to give money to the Defendant in relation to coffee business. In addition, the Defendant attempted to leave the Republic of Korea immediately on June 16, 2016 and failed to prohibit departure due to the Defendant’s failure to take measures to prohibit departure after having been arrested by N on June 13, 2016. In relation to this, the Defendant asserted that he was only trying to depart from the Republic of Korea to collect data necessary for voluntary declarations, but the Defendant was able to obtain data necessary for voluntary declarations in the Republic of Korea. In fact, the Defendant had not reported the overseas account once in the past, and the Defendant failed to promise to return to the Republic of Korea. In full view of the fact that the Defendant failed to return to the overseas account, the Defendant did not comply with the Defendant’s assertion that it would have been likely to escape from the Republic of Korea to undergo the investigation.

C) As to whether an illegal solicitation was made

1) Illegal solicitation in the crime of giving rise to breach of trust refers to a solicitation against social norms and the principle of trust and good faith. A comprehensive consideration of the contents and form of the solicitation, and the integrity of transactions, which are legal interests protected under the law, should be given, and such solicitation is not necessarily required to be explicitly made and implicitly made (see Supreme Court Decision 2003Do4320, May 11, 2006, etc.).

2) In full view of the following facts and circumstances, the Defendant’s act of demanding F to maintain the position of the broker and receive expected fees in return for providing a large amount of money constitutes an illegal solicitation contrary to social rules and the principle of good faith and good faith (the Defendant’s act of demanding F to revoke the instant hosting constitutes a case where the Defendant made an illegal solicitation contrary to the social rules and the principle of good faith (the Defendant’s request that F have a relationship with him/her, and the answer is the only difference between the time when the inside is directly requested to the telephone to the maximum extent permitted.” However, it may be deemed that the solicitation was merely a request that the highest preference is made to the extent permitted. However, it is reasonable to determine whether the solicitation was illegal as a whole with the revocation request of the instant hosting.

① Even if the export contract of the diving of this case was concluded after the hosting was cancelled, it is reasonable to view that there was a high possibility of damage to C at the time due to the cancellation of hosting, taking into account the following. C attempted to secure price competitiveness by building more than one lock box, and by holding the right to select equipment to be loaded inside a lock box, unlike other competitors. L and M attempted to resolve the problem in the situation where there was no progress in the negotiations with D Navy 2, the other party to the negotiations on the load of equipment.3) Furthermore, although the other party to the diving export contract of this case was the Ministry of National Defense, it appears that the negotiations were concluded on the date of the conclusion that there was no significant influence on the conclusion of the contract of this case, which was the de facto user of diving, on the date of the conclusion that it was difficult for the Defendant to unilaterally make a statement to the effect that there was no significant delay in the conclusion of the contract of this case due to the cancellation of the contract of this case.

The amount of money delivered to F is large to approximately KRW 500 million, compared to the fact that there was no particular relationship between the Defendant and F, and there was no money transaction. The Defendant and F used an overseas account that is difficult to track funds, and even the F was remitted to N account in the name of no one’s own account.

③ Even if K knew, based on the information acquired in D, that the event of the instant hosting may adversely affect C, the Defendant did not hear or ask K as to what impact the revocation of the instant hosting, even if the negotiation could be delayed due to hosting, and even if the negotiation could be delayed due to hosting, and did not explain to F. The Defendant even stated in this court that he was unaware of the fact that the instant hosting was determined as an intermediary of another intermediary.

(0) Comprehensively taking account of the following, the Defendant cannot be deemed to have asked F to cancel the instant hosting for the purpose of preventing the delay of entering into a contract. Furthermore, considering that the Defendant did not stated that F had requested F to cancel the printing for such purpose, and even if F had asked LAW to the effect that LAW would be delayed on the face of the contract, F would be aware of the position of F. F. It would be difficult for F to understand that F would not have any grounds for delaying entering into a contract, such as where F would not have any reasons for delaying the conclusion of a contract, even if F’s statement is based on investigation records 284 pages, and that F would not have any reasons for delaying entering into a contract with F. It is difficult to understand that F would not have any grounds for the Defendant’s speech, such as where F would not have any close relation with F. F. It would be difficult to understand that F would not have any reasons for delaying the contract.

(6) The defense counsel asserts that even if the solicitation of the non-building revocation in this case was intended to prevent K from losing its position as a broker, it cannot be deemed illegal since it was a request to secure the existing rights of K with legitimate rights as a broker.4) However, even if the intent of the solicitation is to maintain the legitimate rights that have been previously secured, it should be determined whether the solicitation constitutes an illegal solicitation by comprehensively considering the nature and nature of the contract, the legal nature of the contract, and the legal status and authority of the donor.

On September 30, 200, K was selected as an exclusive export broker from C on or around September 1, 200, and the term of validity was until December 31, 2012. However, CK did not conclude a specific agreement with C on its rights and obligations, even if it was not prepared separately, as it was like the practice of non-life export business, and it did not enter into a contract with C only if it would have been done as an intermediary and the contract would have become a nature, and it was difficult to conclude an agreement on the approximate scope of the commission. At the time of this case’s departure from the Republic of Korea, K would not be deemed to have entered into a contract with the other party as a document necessary for participation (see, e.g., the Defendant’s statement, etc.), and K would not be deemed to have entered into a contract with the other party to whom it would have been delegated by C, and it would be more important for CK to conclude a contract with the other party to whom it would have been delegated as an exclusive broker.

As such, it is reasonable to evaluate the defendant's solicitation as contrary to the principles of social norms and good faith in light of the legal status and authority of K or the defendant at the time of the revocation of the instant hosting, the uncertainty of the contract entered into with C, the nature of the contract entered into with C, and the defendant's request for revocation of hosting without careful consideration or review, rather than simply requesting K or his/her broker to maintain the status of K or his/her broker. Even if the hosting was revoked, it cannot be concluded that the negotiation would not have any influence

Reasons for sentencing

1. The scope of punishment by law: Imprisonment with prison labor for not more than two years;

2. Application of the sentencing criteria;

[Determination of Punishment] Type 3 (at least KRW 100,000) of the misappropriation

【Special Convicted Person】

[Scope of Recommendation] Imprisonment of 10 months to 1 year and 6 months

3. Determination of sentence: The punishment shall be determined as ordered in consideration of the following circumstances, including the Defendant’s age, character and conduct, process of growth, environment, motive, means and consequence of crime, circumstances after crime, etc., various factors of sentencing as shown in the arguments in this case, and the scope of recommended sentences on sentencing criteria, and the conditions after crime.

【Unfavorable circumstances】

Considering that the Defendant made an illegal solicitation requesting the revocation of the hosting with D Navy Chief of Staff solely for the fee to be received by the Defendant, the nature of the crime is not good in light of the fact that there was an adverse impact on the instant diving export contract having a public nature by the Government of the Republic of Korea’s sponsor, etc. In addition, the amount granted to F is large of KRW 50 million, and there is also poor criminal acts, such as using overseas and borrowed accounts in the course of granting. The Defendant first provided money and valuables by actively providing F, such as: (a) having no demand from F, having access to the said money and having been given; (b) having been given; (c) having been given the said money and valuables by informing F of the foreign account to make a solicitation and transfer money; and (d) having been seen that the Defendant attempted to make a false statement on the pretext of the money given to the related persons and the money given. Nevertheless, the Defendant does not deny and reflect all of the crimes.

【Free Circumstances】

The purpose of solicitation of the defendant was to maintain the status of K as a broker, and it seems that there was no change of a broker in the ordinary course of the export of weapons. The possibility that the revocation of the instant hosting could not be ruled out that there was a negative impact on the negotiation was actually not revealed. From around 2003, K had a fiduciary relationship that was publicly announced between K and C as a result of carrying out the export of the diving box in his own expenses, and K continued to act as a broker and eventually had the potential of the instant diving export contract. The defendant was the first offender.

Judges

The presiding judge; and

Judges in the order of precedence

Judge Kang Dong-hun

Note tin

1) Specifically, if the F had been destroyed with the intention of "F, personnel management should be carried out as a matter of course, and personnel management means entering into the export contract of the instant diving box and giving F a certain portion of the fee it receives. Afterward, the F made a statement that "The account number was known in order to keep personnel management in relation to the diving business."

2) Negotiations are divided into the purchase of diving boxes and the shipment of diving equipment, and the former was a party to the negotiations by the Ministry of National Defense.

3) L at the same examination, it is good to set up a fence by a Navy Chief of Staff, which is not easy to meet in the course of negotiations.

4) This assertion seems to be based on the legal principles presented by Supreme Court Decision 85Do465 Decided October 22, 1985, etc.

5) In reference, even under the D Civil Code, it seems that the delegation contract may be terminated according to the intention of the delegating person (see Articles 1813 and 1814 of the D Civil Code).

6) Receiving Winner Letter from D Ministry of National Defense means that it was formally selected as a priority negotiation subject.

참조조문

참조판례

-대법원 2006. 5. 11. 선고 2003도4320 판결

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