Defendant 1 and one other

Both parties

Kim Jong-chul (prosecution) and a transmission file (trial)

Law Firm Barun et al.

Chuncheon District Court Decision 2012Ma527 Decided April 30, 2013

All appeals by the Defendants and the Prosecutor are dismissed.

1. Summary of grounds for appeal;

A. Defendant 1

1) misunderstanding of facts and misapprehension of legal principles

A) As to the giving of a breach of trust

The Defendant was appointed as the president of the pertinent private teaching institute under the contract for acquisition of the right to manage and operate the educational foundation 1 (hereinafter “instant contract”) with Defendant 2, and did not make an illegal solicitation to Defendant 2 and the deceased non-indicted 5,000,000 won (hereinafter “the instant money”) paid to the above non-indicted 2 and the above non-indicted 2. The Defendant did not have any awareness that the performance of the contractual obligation under the instant contract does not constitute an illegal solicitation, and the Defendant did not have any awareness of the fact that the appointment of the president of the said private teaching institute as the president of the said private teaching institute under the instant contract could be an illegal solicitation, the lower court found the Defendant guilty of this part of the facts charged, or erred by misapprehending the legal doctrine, which affected

B) As to taking property in breach of trust

Nonindicted 2’s request for the employment of his wife and talked about the school development fund cannot be deemed to be an illegal solicitation, and even if this constitutes an illegal solicitation, it would be limited to Nonindicted 6, who is not the Defendant, and the Defendant did not receive an illegal solicitation from Nonindicted 7 and Nonindicted 4. In particular, even though the amount received from Nonindicted 4 does not constitute an illegal solicitation with the borrowed money, the lower court convicted the Defendant of this part of the facts charged, or erred by misapprehending the legal doctrine, thereby adversely affecting the conclusion of the judgment.

2) Unreasonable sentencing

The punishment sentenced by the court below against the defendant (one year and six months of imprisonment, additional collection of 90 million won) is too unreasonable.

B. Defendant 2

1) misunderstanding of facts and misapprehension of legal principles

The Defendant did not receive money with the deceased non-indicted 5 as stated in the facts charged, on the grounds that the Defendant was merely the nominal president of the school juristic person 1 at the time of committing the instant crime, and did not fully take part in the process of concluding and executing the instant contract. Meanwhile, the act related to the instant contract cannot be deemed as the Defendant’s business or another person’s business, and even though it cannot be deemed as an illegal solicitation, the lower court found the Defendant guilty of the facts charged against the Defendant, by misapprehending the legal doctrine or adversely affecting the conclusion of the judgment

2) Unreasonable sentencing

The punishment sentenced by the court below against the defendant (one year of imprisonment, additional collection of KRW 825 million) is too unreasonable.

(c) An inspection;

Each of the above types of punishment sentenced by the court below against the defendants is unfair as it is too unfortunate.

2. Determination

(a) Relevant legal principles;

1) 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 property benefits from another person's business in exchange for an illegal solicitation in connection with his/her duties. As the principal of the crime of taking property in breach of trust, "a person who administers another's business" refers to a person who is acknowledged to have a fiduciary relationship to handle the business in light of the principle of trust and good faith in relation with another person. It does not necessarily require that a person has a fiduciary relationship to handle the business in an external relationship with another person. It does not require that the business should be an entrusted business. In addition, the ground for taking property in breach of trust, i.e., the ground for taking property in breach of trust, can also arise through statutory provisions, legal acts, customs, or business management. In the crime of taking property in breach of trust, "in relation to another person's business" includes not only the inherent business related to the entrusted business, but also the inherent business within the scope of such entrusted business, but also includes a person who directly or indirectly gives property or gives 300.

2) In addition, in a case where the defendant denies the criminal intent, the facts constituting the subjective element of such crime are bound to be proven by the method of proving indirect or circumstantial facts having considerable relevance with the criminal intent due to the nature of things. In such a case, what constitutes indirect or circumstantial facts having considerable relevance should be determined by the method of reasonably determining the link of facts based on the prudent observation or analysis based on normal empirical rule. Meanwhile, dolusent intent as a subjective element of the constituent element of the crime has the awareness of the possibility of occurrence of the crime, and furthermore, there is an internal intent to allow the risk of occurrence of the crime. Whether the actor permits the possibility of occurrence of the crime should be determined based on specific circumstances, such as the form of the act and the situation of the act committed outside the country, rather than dependent on the statement of the offender, in consideration of how the general public evaluates the possibility of occurrence of the crime (see, e.g., Supreme Court Decision 2010Do8750, Nov. 10, 2011).

B. Judgment on the mistake of facts and misapprehension of legal principles by Defendant 1

Defendant 1 also asserted the same purport as this part of the grounds for appeal, and the court below rejected the above argument in detail under the title "a judgment on the defendant's and his defense counsel's argument". In light of the above legal principles, in full view of all the circumstances acknowledged by the evidence duly adopted and investigated by the court below, it can be sufficiently recognized that the above defendant made an illegal solicitation at least to Defendant 2 and the deceased non-indicted 5, as stated in this part of the facts charged, as otherwise alleged in this part of the facts charged, and that he received each illegal solicitation from Non-indicted 2, 7, and 4 as stated in each part of the facts charged. Further, the above defendant's solicitation made by the above defendant 2 to the above defendant 2 violated the social rules and the principle of good faith. Thus, the court below's above determination is just and acceptable, and there is no error of law by misunderstanding the legal principles or misunderstanding the legal principles as alleged in the above defendant's above. Thus, the above part of the defendant's assertion is without merit.

C. Judgment on the mistake of facts and misapprehension of legal principles by Defendant 2

Defendant 2 also asserted the same purport as this part of the grounds for appeal, and the court below rejected the above argument in detail under the title of "decision on the defendant's and his defense counsel's assertion". In light of the above legal principles, in full view of all the circumstances acknowledged by the evidence duly adopted and investigated by the court below, the above judgment of the court below is just and acceptable, since it is sufficiently recognized that the above defendant was in charge of the business of the non-indicted 1 school juristic person and received the money of this case with Defendant 1's illegal solicitation as stated in this part of the facts charged, and the above judgment of the court below is not sufficient to reverse the above judgment of the court below and it does not affect its judgment because the statement of the non-indicted 8 and 9 of the witness who was additionally adopted and investigated in the court below was insufficient to reverse the above judgment of the court below, and the judgment of the court below is not erroneous in the misunderstanding of facts or misapprehension of legal principles

D. Determination on the Defendants and the Prosecutor’s assertion of unreasonable sentencing

Although there are no particular criminal records against the Defendants, there are favorable circumstances such as Defendant 2’s old age. However, each of the crimes in this case is not against the nature of the crime in light of the contents of illegal solicitation, the amount of money received, and the adverse effects inflicted upon the students of the non-indicted 1 school foundation and its affiliated students, etc. Nevertheless, the Defendants do not seem to have any reflective motive, such as denying each of the crimes in this case from the trial to the trial. Furthermore, considering the motive and background leading up to each of the crimes in this case, the circumstances leading up to the crime in this case, the age, character, and environment of the Defendants, etc., the punishment imposed by the court below is too heavy or unreasonable. Thus, the Defendants and the prosecutor’s assertion in this part are without merit.

3. Conclusion

Therefore, the appeal by the defendants and the prosecutor 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 Yoon Jin-sap (Presiding Judge)