Defendant 1 and three others

Defendants and Prosecutor

Completion of species

Law Firm Chuncheon, Attorneys Shin Tae-young et al.

Seoul Central District Court Decision 2008 Gohap1298, 2009 Gohap32 (Consolidated) Decided April 23, 2009

All appeals by the Defendants and the Prosecutor are dismissed.

1. Summary of grounds for appeal;

A. Defendant 1, 2

(1) misunderstanding of facts

Materials that the above Defendants acquired, used, or leaked cannot be deemed as trade secrets of Nonindicted Incorporated Company 1 (Supreme Court Decision 2000). The above Defendants did not engage in the above acts with the intent to gain any unjust profit or to inflict damage on Nonindicted Incorporated Company 1.

(2) Unreasonable sentencing (Defendant 1)

The sentencing of the lower court (one year and six months of imprisonment, three years of suspended execution, three years of community service, 80 hours of imprisonment) is too unreasonable.

B. Defendant 3, 4

(1) misunderstanding of facts (Defendant 4)

At the time of the original adjudication, the remaining parts except for the portion deposited into the account under the name of Nonindicted Co. 1 in the list of crimes (2) and the remaining parts of the list of crimes (3) and the embezzlement of the nine parts of the list of crimes (4) did not participate in all in the above defendant's act of embezzlement.

(2) Legal principles

Since the part of the facts charged of this case’s embezzlement of government contributions is established for each research task or each major institution in charge of technological development, the judgment of the court below which held that the crime of violating the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Embezzlement) is established by comprehensively considering it as a single crime

(3) Unreasonable sentencing

The sentencing of the lower court (Defendant 3: 2 years of imprisonment, 4 years of suspended sentence, 4 years of imprisonment, 1 year and 6 months of suspended sentence) is too unreasonable.

C. Prosecutor (Defendant 1 and 3)

The sentencing of the court below is unfair because the sentencing of the court below is too unfortunate.

2. Determination

A. As to the defendant 1 and 2's assertion of mistake of facts

The above defendants also made the above argument in the court below, and the court below explained in detail the decision on this issue with the title "the judgment on the argument of the defendants and their defense counsel". The judgment is sufficiently acceptable, and there is no error of misunderstanding of facts in the court below's decision. Thus, the above defendants' above argument is without merit.

B. As to Defendant 4’s assertion of mistake of fact

According to the evidence duly admitted and examined by the court below, the above defendant's assertion is without merit, since the remaining part except the part deposited in the account under the name of the non-indicted 1 corporation among the list of crimes (2) and the remaining part of the list of crimes except the No. 13 among the list of crimes (3) and the embezzlement of the No. 9 in the list of crimes (4) can be sufficiently recognized, in collusion with the defendant 3, and the above facts of participation are not interfered with the above recognition. The statement of the non-indicted 6 of the witness of the court of first instance or the evidence presented by the above defendant by the defense counsel is not sufficient. The above defendant's assertion is without merit.

C. As to Defendant 3 and 4’s assertion of misapprehension of legal principles

On the other hand, the court below's finding that the crime of embezzlement of government contributions was established by the Minister of Knowledge Economy on the grounds that the payment of each government contribution of this case was derived from the same consignment relationship with the final approval authority of the Minister of Knowledge Economy, including the crime of embezzlement of government contributions, is justified, and there is no other misunderstanding of legal principles. Thus, the above defendants' assertion is not accepted.

D. As to the assertion of unfair sentencing by Defendants 1, 3, and 4 and the prosecutor

(1) Defendant 1

Considering the various sentencing conditions stipulated in Article 51 of the Criminal Act, such as the above defendant has no previous conviction so far, deposited the amount equivalent to the money obtained, and failed to proceed to the actual production and sale of the product by utilizing the trade secret of this case, and the above defendant in this case not only established a leading competitor after withdrawal of the non-indicted 1 corporation, acquired and used the trade secret of the non-indicted 1 corporation, but also obtained and used the government contributions supported by the non-indicted 1 corporation, and the crime is very serious and the criminal intent is denied and the criminal intent is not denied and against it is not against it, etc., the punishment imposed by the above defendant is deemed to be too heavy or too excessive, and thus the defendant and the prosecutor's allegation in this part of this case are rejected.

(2) Defendant 3

Considering the various sentencing conditions stipulated in Article 51 of the Criminal Act, such as the fact that the above defendant did not have any specific criminal record other than a fine one time, all of the crimes in this case are committed, and the fact that the amount of embezzlement was deposited or returned, and the crime in this case was embezzled by using the government contributions provided to non-indicted 1 corporation for the purpose of industrial technology development by neglecting its management, and the nature of the crime is very serious, and the total amount of the government contributions embezzled and the funds provided to non-indicted 1 corporation is 1 billion won or more, and the considerable part of the embezzlement amount seems to have been used for personal interest, etc., the punishment of the above defendant sentenced by the court below is appropriate, and it is not recognized that the above defendant and the prosecutor are too excessive or too excessive, so this part of the defendant's assertion is not acceptable.

(3) Defendant 4

When considering various sentencing conditions stipulated in Article 51 of the Criminal Act, such as the fact that the above defendant had no previous conviction so far, the defendant participated in the crime of this case in accordance with the direction of the defendant 3, and the fact that there are no substantial profits from the crime of this case, but the crime of this case is found to have been embezzled without using the government contributions provided to the non-indicted 1 corporation for the purpose of industrial technology development in accordance with its purport by taking advantage of the fact that the management was neglected, and the nature of the crime is very serious, the sum of the embezzlement that the above defendant participated in the crime of this case reaches 70 million won, and the fact that the above defendant denies some criminal acts to the trial and does not reflect against it, the punishment imposed on the above defendant by the court below is appropriate, and the above defendant's above argument shall not be accepted.

3. Conclusion

Therefore, the appeal by the defendants and the appeal by the prosecutor against the defendant 1 and 3 is without merit, and all of them are dismissed in accordance with Article 364 (4) of the Criminal Procedure Act. It is so decided as per Disposition.

Judges Lee Ki-taik (Presiding Judge)