2014Do1052 A. Breach of trust

(b) Property in breach of trust;

(c) Violation of the Act on Regulation and Punishment of Criminal Proceeds Concealment.

(d) Embezzlement;

1. A.

2. (a) B

3.(a)(b) C

4.(a)(c) D

5. (a) (b) E;

Defendants and Prosecutor (Defendant A, B, C, and E)

Law Firm F (Attorney G, H, and ID (Defendant A)

for the purposes of this section)

Attorney J, K (for Defendant B)

L Law Firm (Attorneys M, N, andO (Defendant C);

D For purposes of section D

Law Firm (L) P (Attorney Q and R) (Defendant E)

For purposes of

Suwon District Court Decision 2014No1038 Decided July 14, 2014

January 25, 2017

The part of the judgment of the court below against Defendant A and C is reversed, and that part of the case is remanded to the Suwon District Court Panel Division.

All appeals by Defendant B, D, and E and prosecutor B and E are dismissed.

The grounds of appeal are examined.

1. Judgment on Defendant A’s grounds of appeal

Examining the reasoning of the judgment below in light of the records, the court below is just in finding Defendant A, a supervisor of the axis of S High School, to receive money from the Defendant B, a supervisor of the axis of T University (hereinafter referred to as “Tuniversity”) as related to the entry of U.S. students who are students of the axis of S High School into the axis of T University, and found Defendant B guilty of the charge of taking property in breach of trust (Article 8 of the Crimes List No. 8 of the judgment of the court below) among the charges against Defendant A, and there is no error by misapprehending the legal principles as to the quid pro quo in the crime of taking property in breach of trust by exceeding the bounds of the principle of free evaluation of evidence in violation of logical and empirical rules.

2. Judgment on Defendant B’s grounds of appeal

A. First, we examine the guilty part among the charges of taking property in breach of trust.

Examining the reasoning of the judgment below in light of the records, it is related to the unlawful solicitation that the court below's receipt of money from the defendant Eul, a sports teacher in charge of the axis of V high school, from the defendant Eul, for the reasons stated in its holding. (1) The payment of money from the defendant Eul, a sports teacher in charge of the axis of V high school, is related to the implied solicitation of changing the students of V high school in the future at least implicitly, and ② the receipt of money from the defendant X, a mother of W, a leader of the axis of the T University, can easily be seen as allowing W to join the professional team, and ③ the receipt of money from the defendant C, a supervisor of the Y and the Z high school, a child of the Y school, was related to an implied illegal solicitation, and ④ the receipt of money from the defendant Eul, a child of the Y and the defendant C, from the perspective of convenience in entering the AB's Tuniversity university, was justified in finding that it was related to the crime of breach of trust or the crime of breach of trust.

B. Next, we examine the guilty portion among the charges of giving property in breach of trust.

Examining the reasoning of the judgment below in light of the records, the court below is just to have found Defendant B, a supervisor of the sports district of T University, guilty of giving money to the supervisor of the sports district of high school, including the other Defendants, for the reasons stated in its reasoning, to the effect that: (a) in consideration of having students of the sports district of the high school enter T University, it is related to an implied illegal solicitation to the effect that it would be favorable for the relevant high school to view the students of the sports district of the high school to enter T University; and (b) direct transfer from the public financial account of T University to the private financial account of the relevant high school is merely a difference in the method of delivery of money; (c) on the other hand, the mere delivery is just to have found Defendant B guilty of the charge of giving money in breach of trust regarding the list of crimes (1) of the first instance judgment among the charges against the Defendant B, which goes beyond the bounds of the free evaluation principle in violation of logical and empirical rules; and (d) there is no error by misapprehending the legal principles on the illegal solicitation in breach of trust.

3. Judgment on Defendant C’s grounds of appeal

A. First, we examine the guilty part among the charges of taking property in breach of trust.

Examining the reasoning of the judgment below in light of the records, the court below is just in finding Defendant C guilty of the part of the charge of taking property in breach of trust against Defendant C, which exceeds the bounds of the principle of free evaluation of evidence against logical and empirical rules, and did not err by misapprehending the legal principles on illegal solicitation, compensation relationship, and intent of taking property in breach of trust against the principle of free evaluation of evidence, or by misapprehending the legal principles on illegal obtaining in breach of trust against the crime of taking property in violation of the rules of logic and experience.

B. Next, we examine the issue of giving property in breach of trust.

Examining the reasoning of the judgment below in light of the records, the court below is just in finding Defendant C guilty of the charge of giving money to Defendant C with Y, on the grounds as stated in its reasoning, on the ground of the following: (a) the offering of money to Defendant C, jointly with Y, was related to an implied illegal solicitation that changed convenience in relation to admission to the Telecommunication University; and (b) the offering of a passenger car to Defendant B, jointly with AB, was related to an implied illegal solicitation that changed convenience in consideration of convenience in relation to admission to the AC University; and (c) there was no error of misapprehending the legal principles on the illegal solicitation or quid pro quo in violation of the principle of free evaluation of evidence in violation of logical and empirical rules, or contrary to the rules of logic and experience, there was no error of misapprehending the

4. Judgment on Defendant D’s ground of appeal

Examining the reasoning of the judgment below in light of the records, the court below found Defendant D’s receipt of money from Defendant D, who is the supervisor of the axis department of AD High School (1) and the supervisor of the axis department of T University, on the grounds as stated in its reasoning, to be related to an implied illegal solicitation to the effect that it considers AD High School students as favorable to the course of entering T University in return for the admission of AE, AF, and AG, which are students of the axis department of AD High School, into the axis department of T University, and that there is an intention of unlawful acquisition, and found Defendant D guilty of the violation of the Act on Regulation and Punishment of Punishment of Criminal Proceeds Concealment by having a third party deposit the check acquired through the criminal act of misappropriation in the name of the third party, and there is no error of misapprehending the legal principles on the illegal solicitation or acquisition of money in violation of the principle of free evaluation of evidence in violation of logical and empirical rules.

5. Judgment on Defendant E’s grounds of appeal

A. First, we examine the guilty part among the charges of taking property in breach of trust.

Examining the reasoning of the judgment below in light of the records, the court below was just in finding Defendant E to be guilty of the violation of the duty of free evaluation of evidence against logical and empirical rules, on the ground that Defendant E’s receipt of money from Defendant E, who was in charge of the guidance of the department of the axis of the V High School, was related to an implied illegal solicitation to the effect that: (a) as consideration for entering the department of the axis of the V High School to the department of the axis of the T University, the students of the V High School; and (b) as consideration for entering the department of the axis of the research institute of the T University, the admission of the V High School and the AI to the department of the axis of the T University, the admission of the students of the V High School to the department of the research institute; and (c) there was no error of misapprehending the legal principles on the illegal solicitation or the subject of

B. The following facts are examined as to the guilty point of embezzlement.

Examining the reasoning of the judgment below in light of the records, it is just for the court below to find Defendant E guilty of embezzlement of the list of crimes (2) in the judgment of the court of first instance among the charges against Defendant E, on the ground that the money that Defendant E received from the head of the parents association of the five-year students at the V High School was used in relation to the university course of the three-year students at the university course. There is no error in the misapprehension of legal principles regarding the degree of presumption of free evaluation of evidence in violation of logical and empirical rules, such as misconception of facts beyond the bounds of the principle of free evaluation of evidence, omission of judgment on probative value of evidence, degree of formation of conviction

6. Judgment on the grounds of appeal by the prosecutor

A. Of the facts charged against Defendant A, the summary of this part of the facts charged (1)

The gist of this part of the facts charged on the fifth trial date of the first instance and the fourth trial date of the lower trial is as follows: “Defendant A was entrusted by the head of the school with all tasks of the axis, such as training of athletes, participating in the racing, and entering the school, and all tasks of training of students, participating in the racing, and entering the school, etc.; thus, his duties are to provide guidance to enter the school in consideration of his ability and qualities. Of the crimes list listed in the attached Table of the lower judgment, Defendant A received money in return for an illegal solicitation from nine parents of S high school members of S high school as stated in 1-7, 9-14 of the list of crimes committed in the attached Table of the lower judgment.” (2) The lower court’s judgment is as follows.

As to this, the court below held that Defendant A received money from Defendant A as an activity fund for university supervision or fluencing with regard to the entrance guidance of students who are the players of the axis team, or that Defendant A received money from Defendant A to a specific university. However, the evidence submitted by the prosecutor alone is insufficient to recognize that Defendant A received money in relation to the entrance guidance of his students as a senior high school supervisor, and the duties to allow students to enter a university due to the course of college supervision or flucing with the university supervision are related to the duties of the president of the university, the principal of the university, or the supervisor of the axis department of the university. Since Defendant A cannot be deemed to have been directly or indirectly in charge of the affairs concerning the selection of new students, Defendant A does not constitute “person who administers another’s affairs.”

In light of the above, the first instance court affirmed the aforementioned determination of not guilty of the violation of trust property. (3) However, such determination by the lower court is difficult to accept for the following reasons.

Article 357 (1) of the Criminal Act is established when a person who administers another's business obtains property or pecuniary benefits in exchange for an illegal solicitation in connection with his/her duties. The person who administers another's business as the principal of the crime of taking property in breach of trust 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 an internal relationship with the other person. It does not necessarily require that a third person has a right to the business in an external relationship with the third person, and it does not require that the business is a comprehensive entrusted business. In addition, the ground for the conduct of business, i.e., the ground for the fiduciary relationship, can be caused by the provision of statutes, legal act, custom, or administrative management (see, e.g., Supreme Court Decision 2002Do6834, Feb. 26, 2003). In addition, "the duty" in the crime of taking property in breach of trust under Article 357 (1) of the Criminal Act includes not only the entrusted affairs but also the original affairs arising therefrom.

According to the reasoning of the judgment below and the records, ① the supervisor of a high school and the head of a school have responsibilities and authority for the training of its students, ② the supervisor of a high school and the head of a high school, unlike other general students, lack of data or opportunity to be objectively assessed due to school records, tests, etc.; ② the supervisor of a high school and the head of a high school and the supervisor of a high school can easily find that the supervisor of a high school and the supervisor of a senior high school can easily recognize that the supervisor of a senior high school and the senior supervisor of a senior high school can easily use the senior supervisor's opinion or the senior supervisor of a high school in the process of selecting the senior supervisor of a high school and the senior supervisor of a senior high school and the senior supervisor of a senior supervisor of a senior high school and the senior supervisor of a senior supervisor of a senior high school and the senior supervisor of a senior supervisor of a senior high school and the senior supervisor of a senior supervisor and the senior supervisor of a senior supervisor of a high school in the process of selecting the senior supervisor and the senior supervisor of a high school.

Examining the above circumstances in light of the aforementioned legal principles, Defendant A’s duties, as a supervisor of the S High School Festival, are not only to train athletes and select players participating in the games, but also to fairly guide and manage their players by being delegated by the head of the relevant school to enter the school of the third-year stable team. It is sufficient to view that Defendant A and nine parents of students participating in the stable stable team, who receive money under the same name as indicated in the above list of crimes, is related to the entrance of students of the stable stable team belonging to Defendant A.

Nevertheless, the court below acquitted this part of the facts charged for the above reasons, which exceeds the bounds of the principle of free evaluation of evidence in violation of logical and empirical rules, or erred by misapprehending the legal principles on the interpretation of "a person who administers another's business" in the crime of taking property in breach of trust.

B. As to the part not guilty among the charges of taking property in breach of trust against Defendant C (1) and the summary of this part of the facts charged

The summary of this part of the facts charged that was changed on the fifth trial of the first instance court is "the defendant C received money from eight parents in return for an illegal solicitation of the duties related to the direction of the players belonging to the axis of the Z high school, such as training of athletes, participating in the school, and entering the school, and the overall duties of training of students, participating in the school, and entering the school, taking into consideration the ability and qualities of the players belonging thereto."

(2) Judgment of the court below

Based on the reasoning of the first instance judgment, the lower court affirmed the first instance judgment that found Defendant C not guilty of the acquisition of money in breach of trust on the ground that it is difficult to view Defendant C’s acquisition of money by illegal solicitation in relation to his/her duties. The lower court affirmed the first instance judgment that found Defendant C not guilty of the acquisition of money in breach of trust on the ground that it is difficult to view that Defendant C’s acquisition of money in return for the foregoing illegal solicitation.

(3) However, it is difficult to accept the above determination by the court below for the following reasons.

Examining the above facts in light of the legal principles as seen earlier, the authority of the supervisor of the sports department of high school and the authority of the supervisor of the sports department of the high school, the course of the supervisor of the sports department of the high school, and the process of selecting students between the supervisor of the sports department of the small-scale department of the high school and the supervisor of the small-term department of the university, etc., Defendant C, as a supervisor of the small-term department of the high school, has duties not only such duties as training of the small-term department of the high school and the selection of the players of the small-term department of the small-term department of the high school, but also such duties as providing the fair instruction and management of the players of the small-term department of the third year, and there is sufficient room to view that Defendant C and the eight students of the small-term department of the small-term department of the high school,

Nevertheless, the court below rendered a not guilty verdict on this part of the facts charged for the above reasons, which erred by misapprehending the legal principles on the interpretation of "a person who administers another's business" in the crime of taking property in breach of trust.

C. As to the non-guilty part of the charge of taking property in breach of trust against Defendant B

Although the prosecutor submitted a written appeal to the effect that he/she is dissatisfied with this part, it is only stated in the written appeal that "the violation of the rules of evidence and the misapprehension of the legal principle", and the appellate brief does not state specific grounds for objection to that part.

D. As to the non-guilty part of the charge of giving property in breach of trust against Defendant B

Examining the reasoning of the judgment of the court below in light of the records, it is just to maintain the judgment of the court of first instance that acquitted Defendant B on the ground that there was no proof of crime as to the act of giving money to Defendant B regarding the act of giving property in breach of trust to Defendant D in relation to the admission of Telecommunication University, and there is no error of exceeding the bounds of the principle of free evaluation of evidence in violation of logical and empirical rules.

E. As to the non-guilty part of the charge of taking property in breach of trust against Defendant E

Examining the reasoning of the lower judgment in light of the record, the lower court, based on the evidence submitted by the prosecutor, received unjust solicitation regarding specific duties by Defendant E.

It is difficult to view the judgment of the court of first instance which acquitted on the ground that there is no evidence to prove it, is justifiable to maintain the judgment of the court of first instance, and there is no error in violation of the principle of free evaluation of evidence.

F. As to the non-guilty part of the embezzlement of Defendant E

Examining the reasoning of the lower judgment in light of the record, it is justifiable for the lower court to maintain the first instance court to have rendered a not-guilty verdict on the charge of embezzlement of KRW 10 million on May 9, 2011 among the facts charged against Defendant E and embezzlement on August 5, 2011, on the grounds that it is difficult to recognize Defendant E’s intent of unlawful acquisition on the grounds as stated in its reasoning, and there is no error by exceeding the bounds of the principle of free evaluation of evidence in violation of logical and empirical rules, or by misapprehending the relevant legal doctrine.

7. Scope of reversal

Therefore, the part of the judgment of the court below which acquitted Defendant A and C should be reversed, and each appeal against Defendant A and C is without merit. However, since the crime that the court below found Defendant A and C guilty and the crime that found them not guilty are concurrent crimes under the former part of Article 37 of the Criminal Act, the part of the judgment of the court below's conviction against Defendant A and C should also be reversed.

8. Conclusion

Therefore, the part of the judgment of the court below against Defendant A and C is reversed, and that part of the case is remanded to the court below for a new trial and determination. The appeal against Defendant B, D, and E and the prosecutor’s appeal against Defendant B and E are all dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Shin

Justices Kim Yong-deok

Justices Kim So-young

Chief Justice Lee Ki-taik