In a case where the Defendant, who is a university professor, was indicted for acquiring research funds from the above industry-academic cooperation foundation, etc. by means of falsely registering students who did not participate in the research as research assistants while participating in the research task under the supervision of the Gap University University, the case holding that the lower court erred by failing to thoroughly examine whether students who were falsely registered as research assistants did not contribute to or participate in the research, etc., and without thoroughly examining whether such students did not contribute to or participate in the research, etc.

Article 347(1) of the Criminal Act

Defendant

Defendant

Attorney Choi Dong-sik

Seoul Western District Court Decision 2013No281 decided October 22, 2013

The judgment of the court below is reversed, and the case is remanded to the Seoul Western District Court Panel Division.

We examine the grounds of appeal.

1. Of the facts charged in the instant case, the fraud is as follows.

From March 1, 2003 to March 1, 2003, the Defendant, who served as professor in ○○ University Life System University and Biotechnology, shall:

A. On March 11, 207, a research project of the △△△ University, which was administered by the △△ University Foundation, participated in the research project as the president of the non-indicted 1 incorporated association in the capacity of the non-indicted 1, and reported the research to the non-indicted 2 and the 6.6 million won to the personnel expenses of the non-indicted 2. The above industry-academic cooperation foundation notified that the non-indicted 2 could not be paid the personnel expenses of the non-indicted 2. The fact was that the non-indicted 3 was added to the non-indicted 3 in the course of the doctoral degree of the ○ University was intended to participate in the research and participate in the research and to pay the personnel expenses, travel expenses, etc. of the non-indicted 3 to the non-indicted 2. However, on July 11, 2007, by deceiving the person in charge of the above industry-academic cooperation foundation by adding the non-indicted 3 as the researcher except for the non-indicted 3 on July 30, 2007.

B. On January 1, 2009, the research project for the “Development of Magam and Alley Madversa Treatment System”, which is administered by the △△ Research Institute, participates in the research project as a person in charge of research with the qualifications of ○○ University biotechnology and professor. The fact is that Nonindicted 4 added Nonindicted 4 as a researcher, but the aforementioned Nonindicted 2 was willing to participate in the research and without participating in the research, and to pay Nonindicted 4 personnel expenses, travel expenses, etc. to Nonindicted 2. However, even if 17 researchers applied for 17 persons as researchers, including Nonindicted 4 as well as 2.4 million won as personnel expenses of Nonindicted 4, and deceiving the person in charge of the industry-academic cooperation foundation belonging to the ○○ University from April 29, 2009 to December 28, 2009, by taking the victim’s total of 3,007,200 won from Nonindicted 4’s personnel expenses, etc.

C. On March 1, 2008, the Information and Communications Technology Promotion Institute announced by the Ministry of Information and Communications, participated in the research project as a person in charge of research and development of the e-Ogran system, and submitted a research proposal including Nonindicted 5 and Nonindicted 6, who are in the master’s degree course of ○○ University, as a researcher, and subsequently reduced the budget. The fact was that, even if Nonindicted 5 and Nonindicted 6, who are in the educational process, were registered as the researcher, Nonindicted 7, who is in the master’s degree course of ○ University, did not participate in the research and did not participate in the research, and Nonindicted 5 and Nonindicted 6, who are in the position of Nonindicted 8 and their third parties, were intended to participate in the research and development project, and to pay personnel expenses, travel expenses, etc. to Nonindicted 8 and Nonindicted 7, who were in the position of Nonindicted 5 and Nonindicted 6, who were in charge of the victim’s ○ University, through registering Nonindicted 5 and Nonindicted 6, as the researcher.

2. The judgment of the court below

The lower court maintained the first instance judgment on the facts charged of the instant fraud for the following reasons.

① In an investigative agency, Nonindicted 3 stated that “ Nonindicted 2 was unable to receive personnel expenses for the Bagin 21 Project, he was registered only his name and paid the personnel expenses that he received to Nonindicted 2,” and Nonindicted 4 also made a statement at an investigative agency that “Nonindicted 3 had registered only his name in relation to the research for the development of Magam and Magra Norma treatment,” and each of the above statements was made in compliance with specific and objective data, and there is no reason to suspect the credibility thereof.

② Nonindicted 3 stated in an investigative agency that “ Nonindicted 5 and Nonindicted 6 were listed as researchers in relation to the research tasks for the development of the cyber-computer-based e-Ogs system,” on the grounds that Nonindicted 3 instructed Nonindicted 8 professors and Nonindicted 7 professors of △△△ University to find ways to resolve the problem. As such, Nonindicted 3, who did not participate in the actual research after consultation with Nonindicted 8 professors, was registered as researchers and decided to resolve the personnel expenses of Nonindicted 8 and 7 professors on the basis of the personnel expenses.” However, there is no reason to suspect the specific and credibility of the content thereof.

③ Nonindicted 2 appeared as a witness and stated that Nonindicted 3 and 4 actually participated in the “Obio 21 Project.” However, Nonindicted 2’s statement is difficult to believe in light of Nonindicted 3 and 4’s statement made at the investigative agency, Nonindicted 2 and Defendant’s relationship, and Nonindicted 2’s legal statement attitude.

④ Therefore, since Nonindicted 3, 4, 5, and 6 cannot be deemed to have actually participated in each of the above studies, and as long as they filed a claim for personnel expenses to the effect that they participated in the research task by including those who did not engage in research assistance activities in the list of researchers, it is recognized that the Defendant had the criminal intent to acquire personnel expenses by deceiving the person in charge of each of the above universities, even though they actually participated in the research task but paid personnel expenses to those who were excluded from the list of researchers due to individual reasons.

3. Judgment of the Supreme Court

A. The above determination by the court below is difficult to accept in light of the following circumstances, which can be seen by the records.

① Based on the results of the audit on national research and development projects, the Ministry of Education, Science and Technology filed a complaint with the prosecutor’s office to the effect that “the Defendant returned the personnel expenses, scholarships, etc. of research assistants (student researchers) who participated in the research project and embezzled the research expenses under the pretext of personnel expenses, etc. for other university professors who are not participating researchers.” Accordingly, the Seoul Western District Prosecutor’s Office in charge of the case began to investigate whether the Defendant embezzled the personnel expenses to be paid to students, etc.

② The Defendant asserted that a person who actually received personnel expenses in the intention to prove the legitimate use of personnel expenses, who was investigated, was entitled to receive personnel expenses by taking charge of the leading role in the research. During that process, the Defendant argued that he/she entered false guidance students as a research assistant in order to pay personnel expenses to him/her, and submitted a written statement, etc. to the investigating agency by directly preparing it from the relevant students.

③ After completion of the investigation on the persons concerned including the Defendant, the above investigation department prepared an opinion that it is reasonable to treat most of the charges of occupational embezzlement as “defensives” on the grounds that adequate personnel expenses were used, such as the Defendant’s vindication, and reported it to the public prosecutor in charge. The public prosecutor in charge stated false students as research assistants, and indicted the Defendant for fraud without any further additional investigation on the ground that the act of receiving personnel expenses would constitute deception against the industry-academic cooperation foundation. The first instance court and the lower court determined that the Defendant or related students were guilty on the basis of the above statements made by the Defendant or related students.

④ According to the above accusation and investigation process, it is reasonable to view that the statement that false instruction students were registered as research assistants is a somewhat exaggerated expression that was made in the process of demanding that the personnel expenses that the students would receive were paid to other persons who participated in the research, leading, and that it was not erroneous. In addition to these circumstances, Nonindicted 3 and Nonindicted 4, who were registered as a false research assistant, appears to have been involved in the most research undertaken in the laboratory at the time, is in charge of the representative of the students in the research institute at the time, and there is a situation where the student is registered as a research assistant, and there is no way to evaluate the role and degree of contribution, and there is no way to evaluate the degree of the student’s participation in the research institute’s education purpose. In full view of these circumstances, it is probable that the student who was registered as a research assistant may not be first registered as a research assistant and then participate in the research and then be registered as a research assistant.

⑤ While the facts charged in the above 1-A stated that “The industry-academic cooperation foundation of △△ University notified Nonindicted 2 that it would not pay personnel expenses to Nonindicted 2.” However, there is insufficient evidence to acknowledge it. Rather, the time when the recipient of personnel expenses was changed on the document was July 2007 when several months elapsed from March 2007 when this part of the research was started. At the time of the conclusion of the research agreement, it is difficult to understand that Nonindicted 2 was eligible to receive personnel expenses from Nonindicted 2. In addition, it is difficult to understand that Nonindicted 2 was present as a witness at the lower court, and Nonindicted 2 was present at the lower court, and “at the time, he was aware of the fact that the research professor status of ○ University was ○○ University, but he was receiving personnel expenses from the △△ University, and changed the documents to be received by Nonindicted 3 without receiving personnel expenses from Nonindicted 2 to 3, 2007.” If this is true, it appears that it did not change the personnel expenses from Nonindicted 2 to △△ University.

④ In relation to the facts charged in the above 1-B, Nonindicted 2 stated that the Defendant was paid KRW 42,00,000,000,000 to external personnel expenses for 12 months, in the Defendant’s participation in the research task as a research researcher affiliated with Nonindicted Incorporated Association 1, which was the president. However, in order to pay additional personnel expenses, it is difficult to understand that Nonindicted 2 paid KRW 2,00,000 to Nonindicted 2 for about 11 times from the personnel expenses that Nonindicted 4 would receive. In this regard, it is difficult to understand that Nonindicted 2 was guilty of this part of the facts charged. In this regard, Nonindicted 2 stated in the lower court that “In the first instance of the research, Nonindicted 2 borrowed the starting price necessary for the research from Nonindicted Incorporated Association 1, and subsequently received the research fund from the research institute.” The lower court did not err in its judgment on the part of the facts charged.

7) The facts charged in the facts charged in Section 1-C of the above Article stated that “○ University students, Nonindicted 5, and Nonindicted 6, who did not participate in the practical research, were falsely listed as researchers and paid personnel expenses that they would receive to Nonindicted 8 professors, etc.” However, the total amount of personnel expenses that Nonindicted 5 and Nonindicted 6 participated in this part of this research task as research assistants does not considerably exceed KRW 60,922,000 for personnel expenses that Nonindicted 8 professors, etc. received. Furthermore, the facts charged in the lower court stated in the purport that Nonindicted 6’s materials submitted by the defense counsel were printed in the author published in a scientific magazine and received support as a research task.

B. In light of these circumstances, the lower court determined that the Defendant was guilty of the instant charges of fraud even though he/she should have examined more closely whether the students, who were not only dependent on the statement at the time when the Defendant was investigated on the charge of occupational embezzlement, but also were falsely registered as a research assistant, should have been aware of the fact that the Defendant did not make any contribution or participate in the research, and how the recipient of personnel expenses was using the changed reason. However, the lower court did not err by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by failing to exhaust all necessary deliberations.

4. Conclusion

Therefore, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Poe-young (Presiding Justice)