208No387 Property in Breach of Trust (Partially Accepted Crime)

A, Professor

Defendant and Prosecutor

U.S. Ho-ho

Law Firm Shin & Yang, Attorney Yellow-Nam et al.

Attorney Jeon Jong-ho

Jeonju District Court Decision 2005Ma391 Decided October 20, 2005

Jeonju District Court Decision 2005No1381 Decided May 12, 2006

Supreme Court Decision 2006Do3504 Decided March 27, 2008

January 23, 2009

The judgment of the court below is reversed.

Defendant shall be punished by a fine of 20,000,000 won. If the Defendant fails to pay the above fine, the Defendant shall be confined in the workhouse for the period calculated by converting 50,000 won into one day.

The 34 days of detention before the pronouncement of the judgment below shall be included in the period of detention in the workhouse.

287,200,000 won shall be additionally collected from the defendant.

In order to order the provisional payment of an amount equivalent to the above fine.

The portion of each violation of trust listed in the annexed Table Nos. 3, 4, 12 through 16, 33, 34, 48, 53 through 58, 66, and 67 on the ruling of the court prior to remand is not guilty.

1. Summary of grounds for appeal;

A. Summary of grounds for appeal by the defendant

1) misunderstanding of facts and misapprehension of legal principles

The defendant's act of receiving money from graduate students as stated in the attached list of crimes in the decision of the court below on behalf of the defendant. However, the court below held that the defendant's act of conducting an experiment on behalf of the graduate students in return for expenses for experiment, but the defendant provided the test results and analysis data on behalf of the academic degree holders in the case of oriental medicine, only as a part of oriental medicine, by proxy for the experiment requested by the academic degree holders, and it does not necessarily provide convenience in preparing the main part of the thesis, and it does not necessarily require a direct experiment to prepare the thesis. Thus, the defendant's act

The court below recognized the defendant as a joint principal offender for the crime of taking property in breach of trust, and found the defendant as an illegal solicitation on the basis of social norms and good faith, without examining the developments and contents, and the impact of the result of the experiment on the preparation and examination of the thesis. ② The defendant was not in a position of guidance professor who may have an influence on the examination of the thesis. ② The defendant merely received experiment expenses and was merely an experimental professor who was entrusted with experiment expenses and did not encourage the defendant to give a dissertation to the graduate students who are not qualified to acquire the degree beyond the degree's recognition of the act of taking property in breach of trust by guidance professors, and it cannot be deemed that the defendant was aware of the act of taking property in breach of trust, and ③ the defendant used the money in full for experiment with the experiment expenses. Thus, the court below found the defendant guilty of all of the charges in this case, and collected all of the charges in this case. The court below erred by misapprehending the legal principles on the illegal solicitation of property in breach of trust and collection, etc., which affected the conclusion of the judgment.

2) The assertion of unreasonable sentencing

The sentencing of the court below against the defendant (two years of imprisonment) is too unreasonable.

B. Summary of prosecutor's grounds for appeal

The sentencing of the court below against the defendant is too uncomfortable and unfair.

2. Determination

A. Judgment on the mistake of facts and misapprehension of legal principles by the defendant

1) In the crime of taking property in breach of trust against the assertion that there was no illegal solicitation, an illegal solicitation refers to a solicitation that goes against social norms and the principle of trust and good faith. In determining this, it is necessary to comprehensively consider the contents of the solicitation and the amount of the property granted or provided in relation thereto, form, and the integrity of the business administrator, which is the legal interest protected, and it does not necessarily require an explicit solicitation (see Supreme Court Decisions 96Do837, Jun. 9, 1998; 2004Do6646, Jan. 14, 2005).

In other words, the following circumstances acknowledged by evidence duly adopted and examined by the court below: ① a degree of KRW 3 million to KRW 9 million per head shall be paid to the defendant and requested the defendant to conduct an experiment necessary for preparing a dissertation; ② a degree of degree is limited to the defendant's students in a laboratory where the experiment is conducted several times during the experiment, and the degree was directly tested by the holder of the degree; ③ the defendant's researchers in a laboratory seems to have participated in analysis of the test results and organization of the thesis form beyond the mere fact of the experiment; ④ most of the graduate students who prepared a thesis by requesting the defendant to conduct an experiment are not unreasonably obtained through the examination of the thesis by requesting the defendant to conduct an interview, or by requesting the defendant to conduct an interview at a graduate school or a doctor's degree without legitimate reason, and so, the defendant's professor or an examiner's instruction or examiner's instruction to the defendant who participated in the experiment to the extent that the defendant's instruction or examiner's degree was not actually conducted by the defendant.

2) As to the assertion that “it does not constitute a co-principal for the crime of taking property in breach of trust”

The crime of taking 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 financial benefits in exchange for an unlawful solicitation in connection with his/her duties, and in principle, he/she is a person who administers another person's business. A person who does not have such status can be a principal agent of the crime only when he/she processes the crime of a person who is status (see Supreme Court Decision 2005Do6433, Mar. 24, 2006).

A) In light of the above legal principles, as to whether the defendant is "a person who administers another's business", the evidence submitted by the prosecutor is binding on the guidance professor and examination examiner of the A University, and the defendant's laboratory researcher of the defendant's laboratory's laboratory's proxy and preparation of the main part of the experiment is recognized, but it is difficult to see that the defendant was in a position to affect the defendant's instruction and examination of the I college's major graduate students, i.e., the I college's major graduate students, i., a doctor's or doctor's degree thesis or doctor's degree thesis (as to the above thesis's instruction and examination, 93 through 939 of the A college's school regulations (as to the investigation record) and its contents are binding on the guidance professor and examination examiner, unless there are special circumstances such as contrary to the law or contrary to the nature of school education, it is hard to see that the defendant's direct use of the thesis as a result of his own examination or examination as a result of his own discretion.

B) Next, we examine whether the Defendant can be viewed as a co-principal who jointly processed the crime of taking property in breach of trust by guiding the degree holder, teaching professor, and the thesis examiner, and whether it can be viewed as a co-principal.

(1) First of all, the crime of taking property or property in violation of Article 357(1) of the Criminal Act is established when a graduate school professor of A, A, K, K, K, K, K, K, K, K, K, K, K, K, K, K, K, K, K, K, K, K, K, K, K, K, K, K, K, K, K, K, K, K, K, K, K, K, K, K, K, K, K, K, K, K, K, K, K, K, K, K, K, K, K, K, K, K, K, K, K, K, K, K, K, K, K, K, K, K, K, K, K, K, K, K, K, K, K, K, K, K, K, K, K, K, K, K, K

However, according to the evidence duly adopted and examined by the court below, in particular, according to the suspect examination protocol of the prosecution No. 4, E, and B, the suspect examination protocol of each prosecutor's office as to the defendant, and the deposit statement (public trial record No. 1126 pages), it is acknowledged that each of the above graduate students directly transferred money to the defendant without going through the instruction professor in the case of criminal facts stated in the attached Table No. 3 (C), No. 4 (D), No. 33, No. 44, No. 48, and No. 66, and No. 67 in the judgment prior to the remand, and each of the above evidence is found, and in particular according to the prosecutor's examination protocol of the prosecution as to G, according to the following evidence, in case of criminal facts described in the attached Table No. 12 through No. 16, No. 53, and No. 58 in the judgment prior to the remand, in light of the above legal principles, it is recognized that G, a guidance professor, or the above defendant received money directly from the above crime.

However, even after examining all the evidence submitted by the prosecutor, there is no evidence to acknowledge that the above guidance professor and the defendant were closely related, or that they conspired in advance with the defendant regarding the crime of taking property in breach of trust in this case.

(2) Next, we examine the case concerning the remaining criminal facts in which the principal offender’s instruction professor’s act constitutes a crime of taking in breach of trust.

In order to establish a joint principal offender under Article 30 of the Criminal Act, it is necessary to implement a crime through a functional control based on the joint doctor. Here, the intention of joint process is insufficient to recognize another person’s crime and to allow it without restraint, and it should be one of the two with intent to commit a specific criminal act as a joint doctor, and it should be transferred by using another person’s act (see, e.g., Supreme Court Decision 2002Do995, Jun. 24, 2004).

However, in the case of this case, even based on all evidence submitted by the prosecutor, there is no evidence to acknowledge that the Defendant and the guidance professor, who is the principal offender, have formed a community of crimes to the extent that they form a whole for the criminal act of this case, such as prior consultation on the distribution of property or property gains acquired from the criminal act of this case.

3) Sub-determination

Ultimately, the judgment of the court below that the defendant constituted a joint principal offender of the crime of taking property in breach of trust by B, etc. is erroneous in the misapprehension of legal principles, and the defendant's assertion is with merit as to the above

B. Judgment on the ancillary charges added at the trial

On the other hand, the prosecutor applied for the amendment of the indictment by adding the charges of aiding and abetting in breach of trust to the ancillary charges through legitimate procedures in the trial, and since the subject of the trial was changed by this court's permission, the judgment of the court below was no longer maintained. In this regard, without further proceeding to decide on the assertion of unreasonable sentencing by the defendant and the prosecutor, the prosecutor examined the ancillary charges added in the trial following the trial.

1) Summary of the conjunctive charge

The Defendant is a professor of the Korea National University of Gyeonghee University.

around August 2004, the Defendant: (a) requested the Defendant to prepare the main part of the experiment and thesis necessary for preparing a doctor’s degree course by proxy from H’s instruction professors for the opening of a doctor’s degree course at A University, and the professor B of the same graduate school, who is a thesis examiner; (b) around that time, the Defendant conducted an experiment by having the researchers belonging to the Defendant’s laboratory, and prepared the paper, and used the Plaintiff as a thesis for claiming a doctor’s degree; and (c) at the time, B received from the above H a request to the effect that “if there is a problem for obtaining a doctor’s degree, such as obtaining a doctor’s degree, such as preparing the main part of the experiment and paper necessary for preparing a doctor’s degree thesis, obtaining convenience for attending the doctor’s degree course, etc., but, on November 20, 2004, 7 million won as experiment expenses, and 2.5 million won as a thesis examination fee.

The defendant was well aware that the above B requested the preparation of the main part of the experiment agency and the thesis to himself according to the above H's request.

As above, the Defendant received 6.3 million won from the above B on Nov. 27, 2004 in return for acting as an agent for an experiment necessary for preparing a doctoral degree thesis and preparing a thesis author. Accordingly, when the Defendant acquired property in exchange for an unlawful solicitation in connection with his duties, the Defendant aided and abetting the Defendant to commit the crime by preparing an experiment agent and thesis necessary for preparing the above H’s doctoral degree thesis and receiving compensation therefor.

The Defendant, including that, between September 5, 200 and January 12, 2005, 35 persons who obtained a doctor’s degree and 18 persons who acquired a master’s degree in the following manner: (a) prepared experiments and thesis manuscripts on a total of 53 occasions from 18 persons who acquired a master’s degree; and (b) received a total of 287,200,000 won in return, thereby aiding and abetting the above B’s crime.

2) Summary of Defendant’s assertion

① Since the Defendant did not recognize the fact that the guidance professors received an illegal solicitation to the effect that “to acquire degrees without problems by providing convenience, such as acting as an agent for experiment necessary for preparation of a dissertation and preparing main parts of a thesis,” it cannot be a crime of aiding and abetting in breach of trust because it constitutes a case where there is no principal offender’s intention, and thus, it cannot be established as a crime of aiding and abetting in breach of trust. ② Since the act of practicing the principal offender cannot be established only without confirming the act of practicing the principal offender, there is no room to establish a crime of aiding and abetting in the guide professors listed in the attached list

3) Determination

A) Whether aiding and abetting is established

The court below duly adopted and examined the evidence, in particular, as follows: ① the defendant was requested by guidance professors on behalf of the defendant as stated in the list of crimes, not to obtain a degree; ② the defendant was also provided with money in the name of experiment expenses; the above guidance professors transferred the money to passbook; and the defendant was provided with money in cash; the defendant was provided with money in a different amount within a certain range (three million won or nine million won) according to the type of degree without considering the degree degree difficulty or settlement of actual expenses; ② the defendant was provided with money in return for the above research by instruction professors on behalf of the defendant; ② the defendant was actively conducted by research professors on behalf of the defendant (the defendant) as well as academic degree professors; the defendant was also aware that the above research was made at the early stage and the degree of contribution was made to the extent of witness, and the defendant did not offer the above research papers to the above instruction professors on behalf of the defendant; even if, in light of the fact that the research professors did not know that the defendant had been given an opportunity to obtain the degree by proxy, the defendant did not present the research paper.

In addition, since the act of a principal offender constitutes an element of a crime and an accomplice is established regardless of whether the principal offender is punished or not, it cannot be said that some of the guidance professors listed in the attached list of crimes, which are the principal offender, was not punished, and thus, the defendant cannot be held liable for the crime of aiding and abetting the principal offender. Therefore, this part of the

B) Whether property, etc. was acquired

However, inasmuch as the Defendant aided and abetted the Defendant by strengthening the resolution of the crime of taking advantage of trust as stated in the crime of the crime of the attached Table No. 2(b) (the crime stated in the annexed Table No. 2(b) in the judgment of the court prior to the sending of a refund, and by facilitating the Defendant’s act, the money in the name of the experimental expenses that the Defendant received from those who acquired the degree shall be the property acquired from the crime of taking advantage of the crime of taking advantage of trust, and the Defendant actually used the money in the experiment cost. Even if this constitutes a case where the Defendant used the money in the discretion of the Defendant, who is the recipient of the detailed use, it is not subject to additional collection (the Defendant’s act of carrying out an experiment to be used as the main part of the doctor’s degree, and received money in return for analysis and reorganization of the result, it cannot be said that the Defendant did not acquire the money received by the Defendant). This part of the Defendant’s assertion is without merit.

3. Conclusion

Therefore, the appeal by the defendant is well-grounded and there are grounds for ex officio reversal as seen above. Thus, the judgment of the court below is reversed in accordance with Article 364(2) and (6) of the Criminal Procedure Act, and the judgment below is again ruled as follows.

Criminal facts

As above 2-b. 1).

Summary of Evidence

1. Partial statement of the defendant;

1. Each prosecutor's protocol of suspect interrogation of the accused (including a copy of passbook transactions attached thereto);

1. Copies of each protocol of examination of suspect by the prosecution against I, E, B, J, and G;

1. The prosecutor's statement to K;

1. A written statement prepared by the defendant;

1. Deposit statement and each dissertation for a degree;

Application of Statutes

1. Article applicable to criminal facts;

Articles 357(1) and 32(1) of the Criminal Act (Selection of Fine)

1. Aid and mitigation;

Articles 32(2) and 55(1)3 of the Criminal Act

1. Attempted mitigation;

Articles 25(2) and 55(1)6 of the Criminal Act

1. Aggravation for concurrent crimes;

Articles 37 (former part), 38 (1) 2, and 50 of the Criminal Act

1. Detention in a workhouse;

Articles 70 and 69(2) of the Criminal Act

1. Inclusion of days of detention in detention;

Article 57 of the Criminal Act

1. Additional collection:

Article 357(3) of the Criminal Act

1. Order of provisional payment;

Article 334(1) of the Criminal Procedure Act

The crime of this case is committed on behalf of another person who is not qualified to receive a degree by receiving money from another person and preparing the main paper, thereby impairing the social trust in the fairness and integrity of the work to award degrees. The crime of this case is committed by taking advantage of the accumulated practice. However, it is necessary to strictly punish the defendant in light of the fact that the crime of this case must be eradicated with social harm, such as where the patient or his family members are suffering from wrong information by calculating the degree of oriental medicine science in short of qualification, and thus, it is necessary to strictly punish the defendant in light of the fact that there is no criminal power, and that the defendant has been unable to nurture the defendant in good faith after being appointed as a professor, and has been engaged in academic research and development, and that it is difficult to nurture him, such as inserting research papers, and that the defendant will not be able to take advantage of the research and development activities of this case, and that the defendant will not take advantage of the research and development activities of this case, and that he will not take advantage of the research and development activities of this case, and that he will not take advantage of his ability.

In the case of criminal facts described in the attached Table 3 (C), No. 4 (D), No. 33 (M), No. 34 (N), No. 48 (P), and Q. 67 as indicated in the judgment of the court prior to the remand of the acquittal portion, each of the above graduate students directly wired money to the defendant without going through a guidance professor, and according to the above evidence, in particular, according to the suspect examination protocol of the prosecution as to G, it is recognized that if the criminal facts stated in the attached Table 12 through 16, No. 53 through 58 as stated in the judgment prior to the remand of the case, G, who is the guidance professor, has transferred money from the students of each of the above criminal facts to the defendant as they are, and if the above instruction professor and the defendant received money from the above graduate students in accordance with social norms, it is not deemed that there is no evidence to support the defendant's act of aiding and abetting the defendant in breach of trust as stated in the attached Table 2 (2) of the Criminal Procedure Act.

presiding judge, judge, roadside;

Judge Maximum Financial Resources

Judges Kim Gin-han