(영문) 서울고등법원 2015.10.22.선고 2014노3989 판결

G was already selected by the investigative agency as the K Center of the E Association (hereinafter referred to as the “E Association”) which is an incorporated association of the Defendant, and made an illegal solicitation to the effect that the Defendant was involved in the process of selecting the above building and determining the purchase price, and according to the result of account tracking and the statement made by the Defendant, N, J, andO at each investigative agency, it is sufficiently recognized that the amount paid by G directly or through N to the Defendant was the consideration for an illegal solicitation. Nevertheless, the lower court acquitted the Defendant of the facts charged in this case on the ground that there was credibility in the reversal statement of G and N, which was erroneous and misunderstanding the facts and misapprehending the legal principles.

2. Determination

A. The judgment of the court below is not guilty

The lower court found the Defendant not guilty of the instant charges on the ground that the evidence submitted by the Prosecutor based on the adopted evidence alone cannot be deemed to have been proven to the extent that there was no reasonable doubt that the Defendant received a total of KRW 132 million in return for the illegal solicitation from G in the process of selecting and trading the instant building to the E Association’s hall in return for the illegal solicitation.

1) Determination on the existence of an unlawful solicitation

A) At the prosecutor’s office and the court below’s decision, G introduced the instant building owned by H Co., Ltd. (hereinafter “H”) upon the Defendant’s request from the Defendant to color a suitable building for the use of the E Association’s hall building on February 2009. On September 10, 2009, E Association purchased the instant building from H to 16.2 billion won and completed its payment until November 12, 2009. After E Association purchased the instant building from H to 16.2 billion won, it received brokerage commission of KRW 275 million from E Association and H, and during that process, the Defendant made no statement to the effect that the E Association would purchase the instant building. However, each of the above statements maintains consistency in its main contents, and its contents are specific, reasonable, objective, reasonable, etc., and it is difficult to reject the relationship with the Defendant even if considering the relationship with the Defendant.

B) Furthermore, while the Defendant vindicates that N in a personal relationship with G was aware of the fact that he was receiving a total of KRW 122 million from the above brokerage commission, and there is no other circumstance to deem that the Defendant was aware of such fact, G and N also have consistently stated that G and N did not inform the Defendant at the time they received the above amount from the prosecutor’s office and the court of original instance. However, if the Defendant received an illegal solicitation, such as G in relation to the sale and purchase of the instant building, as described in the facts charged, there is no reason to conceal G or N’s receipt of the above amount from the Defendant.

C) Furthermore, from February 17, 2009 to February 2, 11, 2009, the Association selected the instant building as a hall building of the Association and entered into the instant sales contract with 16.2 billion won, among the three buildings finally recommended through the procedures such as a meeting of the FF Fund Management Committee (hereinafter “Fund Management Committee”), a meeting of the board of directors and a temporary general meeting of delegates, and a verification inspection. However, it appears that the process of the selection of the building subject to purchase, such as each meeting or a verification inspection, and the actual leading of the negotiation with the seller was the chairman of the Fund Management Committee, and there is no circumstance that the Defendant had exercised any influence on the selection of the building subject to purchase or the determination of the purchase price.

D) Furthermore, the circumstances that a financial institution’s security appraisal of the instant building was limited to KRW 13 billion much less than the purchase price, or that the E Association’s self-reliance fund was not approved by the Ministry of Culture, Sports and Tourism in using the self-reliance fund can only affect the conclusion of breach of trust against the E Association, and there is no direct connection with whether the Defendant can be found guilty of breach of trust against the E Association. In addition, in the case of M, it is merely limited to the Plaintiff’s participation in the preparation of the instant sales contract and reporting of real estate transactions on behalf of G without a licensed real estate agent qualification in H, and the actual broker of the instant sales contract was G in light of the H operator J’s prosecutor’s statement, etc., even if the brokerage commission paid by the E Association was delivered to G through M, such circumstance alone cannot be inferred that G had made an illegal solicitation against the Defendant at the time of the instant sales contract.

E) Meanwhile, in the prosecutorial investigation conducted on March 11, 2014, G stated that, in the process of the introduction and sale of the instant building to the Defendant, he received KRW 300 million brokerage commission from H when he purchases the instant building from the EE Association. However, this is difficult to view it as an illegal solicitation as to his duties. However, in light of the above J’s legal statement by the J.S. court, it cannot be readily concluded that there was an illegal solicitation solely on the ground that the Defendant gave the above remarks from G, even if he, at the time, expressed to all real estate brokers who inquire about the sale and purchase of the instant building, that the instant building would be sold to the extent of KRW 18 billion, if the instant building was sold to the extent of KRW 18 billion, it is difficult to conclude that there was an illegal solicitation.

F) Furthermore, even if the Defendant, from the beginning, got involved in the sale of the building of this case through G and caused the pecuniary advantage equivalent to the brokerage commission thereof, and even if he assumed that there was any request or request from G related thereto, the relationship between the parties and the process of the introduction of the building of this case. As a result, it is sufficient to view that the amount that the Defendant received from G as a result of the fact that the amount that the Defendant received from G exceeds 48% [=48% of the total brokerage commission (=132 million won/275 million won)/100], it is difficult to view it as a consideration for illegal solicitation. In light of the above, it is sufficient to view it as a conspiracy or consultation between the accomplices of the crime of breach of trust rather than an illegal solicitation at issue in the crime of breach of trust taking place.

2) Determination as to the existence of a quid pro quo

A) On September 11, 2009, after the conclusion of the sales contract on the instant building, G consistently received KRW 100 million as part of the brokerage commission on September 11, 2009, G, which was stated in the prosecutor’s office and the lower court’s court’s court, that H wired the amount of KRW 50 million to himself/herself, and that the remainder of KRW 50 million was remitted to N who recommended the instant building under the pretext of repair expenses. On September 15, 199, G remitted the amount of KRW 10 million borrowed from the Defendant to the Defendant under the pretext of payment for USD 10,000,000 borrowed from the Defendant, and paid KRW 72 million as living expenses around November 12, 2009.

B) In addition, at the prosecutor's office and the court of original trial, at around February 2009, N also received request from the defendant to find out the buildings to be used as the E Association hall, and recommended 4 buildings including the instant building to the defendant. After which the instant building was finally purchased and sold, when the instant sales contract was concluded, N received KRW 50 million from H on September 11, 200 and received KRW 72 million from G on November 12, 200.

C) Other: (a) In the case of KRW 50 million remitted to N on September 11, 2009, N applied for real building with G, and then recommended four buildings including the instant building to the Defendant; (b) in the case of KRW 10 million remitted to the Defendant on September 15, 2009, it is difficult to deem that G paid the price for illegal solicitation by account transfer, which would provide objective evidence, unlike others; and (c) in the case of KRW 72 million delivered to N on November 12, 2001, the Defendant was paid most of the project cost with G and failed to carry out the project with it; and (d) as long as economic circumstances were not good at the time, it cannot be readily concluded that G paid the price for illegal solicitation in view of the possibility that it would have paid money for living expenses under the name of the above N as a type of imprisonment.

B. The judgment of this Court

1) Relevant legal principles

A) If a person acquires property or pecuniary gains in exchange for an unlawful solicitation as to his/her duties, the crime of taking property or pecuniary gains is established. However, the crime of taking property or pecuniary gains is not established unless an illegal solicitation is opened between a donor of property or pecuniary gains and a purchaser of property or pecuniary gains. Here, “illegal solicitation” does not necessarily require it to the extent that it constitutes a crime of occupational breach of trust, and is sufficient if it is contrary to social rules or the principle of good faith. In determining it, the following should be comprehensively considered: (a) details of the solicitation and the amount of the consideration related thereto, form, and transaction integrity, which is the legal interest protected by the law; and (b) there is no need to explicit solicitation. Even if the person acquired property or pecuniary gains after receiving an illegal solicitation, the crime of taking property or pecuniary gains is established as the consideration for such solicitation; and (c) the same shall also apply where part of the property or pecuniary gains acquired by the other party from the other party is acquired in return for such solicitation (see Supreme Court Decision 2011Do1114, Nov. 14, 2014). 2017>

B) The crime of taking property or property in breach of trust under Article 357 (1) of the Criminal Act is established when a person who administers another person's business obtains property or property benefits in exchange for an illegal solicitation in connection with his/her duties. The crime of taking property in breach of trust under Article 357 (2) of the same Act is established where a person who administers another person's business obtains property or property benefits from another person, not the person himself/herself, even though he/she received an illegal solicitation in connection with his/her duties. It is clear that the crime is not established where the other person has acquired property or property benefits from another person, not the person himself/herself, even though he/she received an illegal solicitation in connection with his/her duties. However, there are circumstances such as where the other person takes property or property benefits from another person'

In a case where a person who received an illegal solicitation by receiving property or property benefits is exempted from expenditure as much as the person who received an illegal solicitation, or in a case where there is a relationship that can be evaluated as being directly received by another person, such as a person who received an illegal solicitation by receiving property or property benefits, the above crime may be established (see, e.g., Supreme Court Decision 2004Do2581, Dec. 22, 2006).

2) Specific determination

A) According to the evidence duly adopted and examined by the lower court and the lower court, the following facts can be acknowledged.

(1) The Association established the K Center to create a real estate rental business with a view to generating more than time deposits. Around February 2009, the Fund Management Committee was organized as an organization to promote the business. At the time, the Defendant was a member of the E Association’s managing director and the Fund Management Committee, which was involved in the purchase of the building to be used as the K Center. G, as the Defendant’s punishment, has been engaged in real estate executor’s work at real estate, and has not been qualified as a licensed real estate agent, but has been acting as a broker for real estate sales. N was a person in de facto marital relationship with the Defendant and was entirely in charge of the Defendant’s living together with the Defendant at

(2) At early 2009, the Defendant: (a) discovered the building suitable for use as the K Center to G; (b) after printing the building, G introduced the instant building owned by H to the Defendant. G, the operator of H, concluded that G would buy and sell the instant building in excess of 18 billion won and offer KRW 300 million to G as the prime fee; (c) on the basis of the Defendant’s statement of such fact, G would also receive a large amount of fee from H when E Association purchases the instant building.

(3) The Defendant recommended the instant building to the Fund Management Committee, and 0.0 billion won, which was the chairman of the Fund Management Committee, was so high that it is difficult for the Defendant to purchase the instant building due to the excessive height, and the Defendant told G to this situation, and G lower the purchase price from J to 17 billion won. In other words, the Defendant again agreed with the owner of the instant building and decided to lower the purchase price to KRW 17 billion.0 billion. The Fund Management Committee selected the instant building and recommended BE building as the final candidate, and inspected the instant building on July 27, 2009. In that process, G heard heard from the Defendant that the instant building overlaps with BE building, and transferred that fact to J on July 22, 2009, by preparing a document that the instant building was excellent, and J prepared to G on July 1, 2009.

(4) At the third conference on August 3, 2009, the Fund Management Committee finally selected the instant building as the subject of purchase, by comparing the economic feasibility of the instant building and BE building. The comparative basis records are that the estimated rental deposit of the instant building is KRW 2.5 billion per annum, and the estimated rental fee is KRW 1.144 billion per annum, and the data are stated as being higher than that of the BE building. (2) The data are received through G from the Defendant and reflected them into the meetings as they are. Meanwhile, the Fund Management Committee intended to include the brokerage fee of KRW 50 million, which is to be paid to the intermediaries who introduced the instant building by the Association, as the reserve fund.

(5) Since then, this Court decided to reduce the purchase price to 16 billion won, taking into account the fee of 20 million won to be paid to GaG, and expressed its intention to sell the instant building if 16.2 billion won, and from G, the Defendant again notified 0 of her intention. Ultimately, on September 10, 2009, the sales contract for the instant building was concluded with 16.2 billion won. In preparation of the contract, Ma of Licensed Real Estate Agents, who are the seat of J, participated in the contract, and even if M did not participate at all in the brokerage of the instant building, it was formally participated upon request of the J so that G without qualification as licensed real estate agent may receive brokerage commission from the E Association. Meanwhile, the statement on confirmation and explanation of the object of brokerage attached to the said contract stated 81 million won as brokerage commission.3)

(6) On September 10, 2009, the Association paid the down payment of KRW 1.6 billion to H on the date of the contract, and H paid KRW 100 million to G on September 11, 2009, the following day, as a brokerage commission, and KRW 50 million deposited into G’s account in the name of G, and KRW 50 million, the remainder of KRW 50 million, at the request of G, into L’s account in the name of N. 20 million. The KRW 50 million deposited into L’s account was divided into KRW 20 million, KRW 3,150,000,000 to X on the same day, and KRW 3,150,000,000 to AS, and both these were repaid by the Defendant.

(7) On September 14, 2009, the Association remitted KRW 40 million to the M’s account under the name of the primary brokerage commission. G received KRW 30 million out of the said money through the J on September 15, 2009, the following day, and deposited KRW 10 million into the Defendant’s account on the same day. Meanwhile, the said KRW 10 million was deposited into the AM account on September 24, 2009, and this was also repaid by the Defendant.

(8) On November 12, 2009, the Association remitted KRW 40 million to the M’s account under the pretext of the second brokerage commission, and KRW 15 million out of the said money was delivered to G in the name of G, and KRW 10 million to G in the check. On the other hand, H received from the Association the remainder of the purchase price of KRW 5.32 billion from the E Association on the same day, and paid KRW 120 million in the face of checks to G as brokerage commission. G paid KRW 145 million in the face of checks and cash, which was received from the Association and H, KRW 72 million in the face of checks and cash, and KRW 10 million in the face of KRW 72 million in the face of checks and cash received from the E Association and KRW 30 million in the face of the Defendant’s creditor, AMG, ATPP, BP, and used the said money to AB as the Defendant’s debt, or remitted it to AB.

(9) According to the Ethical code of conduct for the Association, an executive officer or employee of the E Association shall consult with his/her superior about his/her duty to avoid his/her duties where he/she deems it difficult to perform his/her duties fairly because he/she is related to his/her interests or is related to his/her duties, shall not obtain unjust profits or have another person gain unjust profits, nor shall he/she receive money, etc. from his

(10) Meanwhile, while E Association purchases the instant building and pays brokerage fees to the broker, the Defendant did not inform all the persons related to E Association including 0, who introduced the instant building and received brokerage fees.

B) Examining the above facts in light of the legal principles as seen earlier, the Defendant received an illegal solicitation from G to the effect that he would purchase the instant building introduced by the E Association, so that he would receive a brokerage commission, and the Defendant acquired a total of KRW 132 million in consideration thereof. Therefore, it is reasonable to view that this constitutes a violation of trust taking place. hereinafter the same should be examined specifically.

(1) Whether there was an illegal solicitation

The defendant was in a position to exercise influence over the selection of the building to be used as the K Center as a member of the E Association's managing director and the Fund Management Committee. Meanwhile, G stated in the second prosecutor's investigation that "in the case of purchasing the building of this case at the E Association, the defendant would have received KRW 300 million from the seller and would have received KRW 300 million from the seller," and it is true that the third prosecutor's investigation does not explicitly express that "in the case of purchasing the building of this case at the E Association, it would help the defendant clearly, and it would be good that the defendant would be able to receive money when he would receive money when he would receive money when he would receive money from the seller. In the first prosecutor's investigation, it is reasonable to introduce the building of this case at least that the E Association would have received KRW 18 billion from the buyer's success at the court of G court.

In general, in cases where a person who deals with affairs related to a contract entrusted by another person receives money in return for the request that he/she can become a party to a contract with another person, barring special circumstances, it constitutes an illegal solicitation (see, e.g., Supreme Court Decision 2006Do906, Nov. 23, 2006). The purport of the above request is to grant him/her the right to brokerage of the building of the K Center to him/her, and the defendant has a duty of fair and transparent procedures and to purchase a building under the most favorable terms to the E Association. If he/she judges that it is difficult to perform his/her duties in connection with his/her duties, he/she has a duty to consult with the chairperson of the E Association or the fund management committee, and in particular, he/she has not been obliged to obtain unjust profits from G by using his/her position, and if he/she is not in a special relationship with the defendant and a licensed real estate agent, he/she is not in violation of the principles of trust and good faith.

Furthermore, without closely examining the economic feasibility of the building of this case introduced by G, the Defendant recommended G to the Fund Management Committee without closely examining the economic feasibility of the building of this case, and notified G of the direction of the meeting of the Fund Management Committee. 7) G of its intention or the direction of the meeting of the Fund Management Committee, which led G to lower the purchase price of this case to 17 billion won, and unilaterally delivered anticipated rental profit data prepared by J to reflect it as it is at the meeting of the Fund Management Committee. It is sufficient to see that the Defendant participated in the selection of the building of this case subject to purchase and exercised influence to a certain extent. Accordingly, it is sufficiently recognized that the Defendant implicitly accepted the above illegal solicitation, and that the Defendant concealed the fact that the Defendant introduced the building of this case to the E Association or the Fund Management Committee, and that G paid the building of this case to N’s name account without directly transferring or delivering most of money to the Defendant, who is living together with the Defendant at the time of carrying out investigations, and that there was a false loan preparation.

(2) Whether there is a quid pro quo

G made a statement to the effect that N was only a role to the extent that N was discovered at the time of physical display of the building to be used as K center at an investigative agency, and that N was also the same purpose.11) The Defendant alleged on September 11, 2009 that N was a lawful receipt of the amount of KRW 50 million from H with L’s account, but it is difficult to obtain a large amount of KRW 50 million only by performing the role to the extent that the building of this case was done to the extent that N was done to the extent that it was done to the extent that N was done to the extent that it was done to the extent that it was done to the extent that N was done to do so. Rather, it is reasonable to deem that the Defendant was paid to N through H.

Meanwhile, G paid KRW 132,00,000,000 to N and the Defendant immediately following the date on which H and E Association received a total of KRW 275,000,000 from N and the Defendant’s brokerage commission, and such N and the Defendant’s money constitutes at least 50% of the amount received by G, and most of the above KRW 132,00,000 were used for the purpose of repaying the Defendant’s obligations or lending the Defendant’s money to the Defendant’s branch. Accordingly, N made a statement to the effect that, at the investigative agency, most of the other parties who sent their money are not related to himself/herself, and the Defendant sent money according to the Defendant’s instructions, it is reasonable to view that the Defendant did not know of the fact that the said money was paid to the Defendant with brokerage commission, and that the Defendant did not receive money from them, and that it did not receive money from the Association for a short period of time, but it was difficult to view that the Defendant did not receive money from the Defendant to the extent that it did not receive money from several persons.

Furthermore, G refers to the fact that “N” was given to the Defendant at the investigative agency, and the Defendant stated to the effect that “N would no longer take money if he did not speak,” 14) G made a statement to the effect that the Defendant demanded a brokerage commission to the E Association through the Defendant in the court of the trial. 15) In full view of the fact that the Defendant introduced the instant building by G and M participated only in the preparation of a formal contract, while considering the fact that G was executed by increasing the brokerage commission appropriated at the meeting of the Fund Management Committee without any specific reasons, the money paid by G to the Defendant was paid as a consideration for purchasing the instant building introduced by the Defendant and allowing the E Association to receive a brokerage commission, and that the Defendant was aware of this fact.

(3) Whether the defendant can be seen as acquiring property

It is a question of whether N's total of KRW 1220 million received from G can be seen as having been received by social norms.

N from around 2010, the statement was made by N and G investigative agencies and the court below that N had living together with the Defendant. However, according to the statement at N and G investigative agencies and the court below, it appears that the Defendant had living together with the same officetel at the time of the instant crime, and the Defendant deposited the common living expenses from February 25, 2009 to N’s L account used by N., and as seen above, G provided money to N who had living together with the Defendant, while living together with the Defendant, and the money was used in the repayment of the Defendant’s liability according to the Defendant’s intent.

In light of the relationship between the Defendant and N, the actual intention of G with money, and the place of use of money received from G, etc., the total of KRW 122 million received from N from G may be assessed as being directly received by the Defendant under social norms.18)

C) On the contrary, the lower court determined that G’s statement to the effect that G was consistent and reasonable to the effect that “E association has made a statement to the effect that “the Defendant would have received KRW 300 million brokerage commission from H when purchasing the instant building from the E Association” at the investigative agency, but it is difficult to dismiss the Defendant’s payment of the price paid by G and N on the ground that G and N consistently stated that “the Defendant would not have made any solicitation to the effect that E association would purchase the instant building,” and that G and N did not notify the Defendant of the fact at the time of receiving money, and that the Defendant did not have any influence on the selection of the instant building as the subject of sale or the determination of the purchase price, and that there was no proof that there was an illegal solicitation between G and G was no reasonable doubt. Furthermore, the lower court determined that it is difficult to recognize the payment of the price paid by G on the grounds of a partial statement of G and N.

However, as stated by the lower court, it is difficult to view that G and N’s respective statements are inconsistent with those of their own statements as seen earlier, and in light of the roles performed by G and N in the instant crime and their relationship with each Defendant, etc., G and N seem to have sufficient motive to make a false statement on behalf of the Defendant. In fact, since they have prepared a false loan certificate in preparation for investigation, their statements are difficult to believe because there are considerable circumstances to suspect the credibility thereof. Furthermore, as seen earlier, it is sufficiently recognized that the Defendant, as a senior executive director of the Association, was able to select the instant building as the object of sale or exercise influence over determining the purchase price, the lower court’s aforementioned determination is difficult to accept.

In addition, in light of the legal principles as seen earlier, illegal solicitation in the crime of taking property in breach of trust does not necessarily need to be explicitly and explicitly permitted, and only the case at the time of receiving a solicitation should be promised to do so, it does not mean that it can be viewed as an illegal solicitation. Therefore, even in a case where a defendant receives an illegal solicitation from G and thereafter acquires money in return for a solicitation, and where part of the money acquired by G from G as a result of an illegal solicitation was acquired from G, the crime of taking property in breach of trust is established. Therefore, the mere fact that the lower court

D) Ultimately, the lower court erred by misapprehending the legal doctrine on illegal solicitation in the crime of taking property in breach of trust and the acquisition of property in consideration thereof, thereby adversely affecting the conclusion of the judgment.

3. Conclusion

Therefore, since the prosecutor's appeal is well-grounded, the judgment of the court below is reversed pursuant to Article 364 (6) of the Criminal Procedure Act, and it is again decided as follows.

Criminal facts

The Defendant served as a managing director of the Association from December 2, 2008 to February 2, 2013, and was working as a vice-chairperson of the Association from March 2013.

The defendant is a member of the E Association's managing director's interest and fund management committee in 2009 and is required to obtain prior approval from the Ministry of Culture, Sports and Tourism pursuant to Article 46 (3) of the E Association's articles of incorporation in purchasing E Association's building by using self-reliance funds managed by the E Association, etc., as well as to closely grasp real estate prices such as conducting appraisal of the price of the building in question, and to carefully determine purchase targets, prices, etc. through thorough market surveys on future expected profits, etc., and during that process, the defendant had a duty of not obtaining unjust profits by using his

Nevertheless, the Defendant was made an illegal solicitation to the effect that, on July 9, 2009, the Defendant had broad authority, such as the coordination and enforcement of the E Association budget, the establishment and coordination of the operation plan, and the implementation of the Committee’s resolution, etc., from G, the Defendant’s punishment, bromoer, to purchase the Seoul Gangnam-gu I building owned by H, the E Association would pay a large amount of fees to H, so H’s president J would be able to purchase the instant building, so that the E Association would be able to collect fees.

Therefore, without sufficient review of the real estate price and expected profits in the future, the Defendant reported to the Fund Management Committee and the Executive Board as if the prospect of the rental proceeds of the instant building was very clearly stated in the current status of the sales of the building provided by the seller, and the Board of Directors or the Temporary General Meeting of Representatives decided to authorize the Chairperson of the E Association to purchase the K Center, thereby allowing the instant building to be actually selected as a building subject to purchase.

Then, without obtaining approval from the Ministry of Culture, Sports and Tourism for the use of the self-reliance fund, the Defendant concluded the instant sales contract with H for KRW 16.2 billion on September 10, 2009; the Defendant received KRW 1.6 billion on the same day as the intermediate payment; the Defendant received KRW 1.9 billion on October 12, 2009, KRW 1.9 billion on the account of the said self-reliance fund; the Defendant received KRW 200 million on the account of KRW 1.9 billion on November 6, 2009, from 2000, KRW 1.6 billion on the account of 9 billion on the account of the said non-reliance fund; the Defendant received permission for the alteration of the articles of incorporation with respect to the use of KRW 1.4 billion on the account of the said non-reliance fund; and the Defendant received approval from the Ministry of Culture, Sports and Tourism for KRW 1.05 billion on the account of 200,000,000 from G banks.

Summary of Evidence

1. Legal statement of a witness G, N, J, M and Q in part;

1. The witness G, N,O, and R's partial statement in the original trial;

1. Partial statement of each prosecutor's protocol of examination of the defendant against the defendant;

1. Some statements in the suspect examination protocol of the prosecution concerning 0;

1. Some statements written by the prosecution against G, N, and J;

1. Statement of each prosecutor's statement about AM, AX, Q, AB, X, M, AU, and R; 1. Each investigation report [Attachment of data related to purchase of the Association; 165.50 million won of the K Center deposited by the Association; 200 million won of the purchase fund of the K Center; Hain G's suspicion of illegal transactions, such as brokerage fees, received from H of the building seller H, under the name of brokerage commission; 200 million won of the E Association's real estate purchase fund; 3.7.5 billion won of the E Association, E Association's meeting minutes; 2.7.5 billion won of the E Association's acquisition fee; 3.3 billion won of the E Association's acquisition result; 4.3 billion won of the E Association's purchase fund analysis; 4.5 billion won of the E Association's transfer from the M's name brokerage fee analysis; 4.5 billion won of the AT-related statement; 5.7.5 billion won of the data attached to the K Association's account analysis.

1. The application of Acts and subordinate statutes to a copy of each sales contract, a copy of account transactions, a copy of a certificate of deposit transactions, a copy of a receipt, a copy of a monetary statement, a copy of a withdrawal and payment of money statement, a copy of an investment analysis of real estate (Evidence No. 1,46, 47, 68, 97, 102, 103, 116, 117, 122, 127, 128, 130, 227, 236, 259);

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

Article 357(1) of the Criminal Act (generally, choice of imprisonment)

1. Additional collection:

The latter part of Article 357(3) of the Criminal Act

1. The grounds for sentencing: Imprisonment with prison labor for not more than five years;

2. Determination of sentence: Imprisonment with prison labor for not less than one year and six months;

The Defendant acquired a large amount of KRW 132 million in consideration of the following facts: (a) the Defendant, as a member of the E Association’s managing director and the Fund Management Committee, in response to an illegal solicitation from G, one’s own form, to purchase a building introduced by the E Association, so that he/she may receive brokerage commission; (b) the Defendant acquired a large amount of KRW 132 million in consideration of the following: (c) the Defendant damaged the social trust in integrity and fairness of the business affairs of the E Association due to the instant crime; (d) the Defendant exercised influence over the selection of the instant building as the K Center; (c) the Defendant did not seem to have a strong attitude against the Defendant while denying his/her crime; and (d) the Defendant prepared a false loan certificate along with G, etc.; and (e) the Defendant

However, the fact that the defendant does not seem to actively demand G to pay for solicitation, that the defendant has contributed to the development of the Republic of Korea E for a long time as E is an E, and that the defendant wants to take the preference of this defendant, and that there is no penalty other than a fine, etc., the circumstances favorable to the defendant shall be considered.

The punishment shall be determined as ordered in consideration of all the sentencing factors shown in the pleadings of this case, such as the character, conduct, environment, method, circumstances after the crime, etc. of the defendant.

Judges

The presiding judge and the senior judge;

Judge Lee Jong-soo

The number of judges

Note tin

(i) Three books of evidence 1766, 1767 pages;

(ii) evidence records 1 180 pages

(iii) one copy of evidence recording 24 pages

(iv) Three copies of evidence records 1811 pages

5) Four books of evidence 1914, 1915 pages

6) Eight pages of the record of the examination of the witness G in the trial of the witness G.

7) G stated that the Defendant introduced four buildings to the Defendant, on the other hand, following G’s statement, the instant building was excluded.

The rest of three buildings did not look at the owner of the building (3rd 1808 pages of evidentiary records), and even if they were not offered as objects,

As such, (6 pages of the record of the examination of a witness witness G), G in fact only one of the buildings in this case against the defendant.

The defendant is also recommended to the Fund Management Committee as it is.

8) The 0th chairman of the Fund Management Committee recommended and arranged BE buildings, and the buildings in this case are selected and otherwise arranged.

Then, there seems to be a lack of officers of the E Association (R’s statement of the original witness, 151 pages of the trial records), and 0 at the original court

When the K Center was led to purchase, the statement was made to the effect that the BE building was selected (the trial record 171 pages).

9) At the time, the chief executive officer was unaware of who arranged the instant building at the time, and was under investigation by the prosecution later.

If the defendant's friendship, who is a senior executive director of the Association, has become aware of the fact in advance that he/she is acting as a broker and received a brokerage commission.

The court below testified to the effect that it would be "(174 pages of the trial record)."

10) Three books of evidence recording 158 pages

11) Four books of evidence 186 pages

12) Three books of evidence recording 1805 pages

13) Three copies of evidence records 1792 1796 pages

14) Three books of evidence 1807, 1808 pages

15) The record book of the examination of the witness G of the trial in respect of the witness G 12 pages

16) N made a statement to the effect that “N had been the Defendant in the officetel located in the Republic of Korea,” but it was stated to the effect that “N had been the Defendant in the officetel, 3rd 1571 pages), 208.

From around the point of view, the Defendant made a statement to the effect that he had been staying in an officetel that he obtained.

(3) Evidence Nos. 1788, 136 of the trial records). Meanwhile, G at the lower court, two persons are officetels without house at the time of committing the instant crime.

The testimony was made that it was considerably difficult while living together (19,122 pages of the trial records).

17) G was a total of KRW 122,200,000,000,000, which correspond to N in the lower court’s testimony, and the Defendant was living together with the Defendant at the time.

In addition, the said statement was made to the effect that the money was actually the victim’s money was actually the victim’s money (the 119 pages of the trial record).

18) The counsel at the court below held that the moneys Nos. 2 and 3 in the annexed list of crimes shall be left to divorce by failure to make an investment at the time when G is referred to.

It also stated that the defendant, who was a friendly living without wife, was able to give economic assistance to the defendant. The third trial records of the court below are the third trial records of the court below.

and the defense counsel’s written opinion of July 14, 2014

19) Since the sentencing criteria for the crime of taking property in breach of trust have not been implemented at the time of the instant indictment, the sentencing criteria are not applied.

심급 사건

-서울중앙지방법원 2014.12.5.선고 2014고합455

서울고등법원 2015.10.22.선고 2014노3989

-대법원 2016.1.14.선고 2015도17741

참조조문

-형법 제357조 제1항

-형법 제357조 제3항

-형사소송법 제364조 제6항

참조판례

-대법원 2006. 11. 23. 선고 2006도906 판결

-대법원 2006. 12. 22. 선고 2004도2581 판결

-대법원 2013. 11. 14. 선고 2011도11174 판결

유사 판례

-서울고등법원 2015.10.22 2014노3989

-대구지방법원 2014.05.23 2013고합563

-서울중앙지방법원 2015.01.29 2013고정4027

-서울북부지방법원 2015.05.29 2012고정1452

-청주지방법원 2019.07.18 2018가합5680