2014Gohap56, 162(combined)

(a) Dried trees;

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

(c) Property in breach of trust;

1.(a) A

2.(a) B

3.C.

4.c. D

5. (c) E.

The red tin flag (prosecutions, public trials), and the second public trial;

Attorney F, G (for Defendant A)

Attorney H (Defendant B)

Attorney I, J.K (Defendant C)

Attorney L (Defendant D)

Law Firm M, Attorney N (Defendant E)

October 13, 2014

Defendant A shall be punished by imprisonment with prison labor for 4 years, by imprisonment for 5 months, by imprisonment for 2-A, 2-2(b), and by imprisonment for 1 year, by imprisonment for Defendant C with prison labor for 1 year, by imprisonment for Defendant D with prison labor for 10 months, and by imprisonment for 6 months for Defendant E.

However, with respect to Defendant C and D, the execution of each of the above punishments shall be suspended for two years from the date when this judgment became final and conclusive. The amount of KRW 680,00,000 from Defendant A, and the amount of KRW 870,000 from Defendant B through Defendant B, shall be collected respectively. The order of provisional payment equivalent to the above additional charges shall be issued against Defendant A and B.

Criminal facts

【Criminal Power】

Defendant B was sentenced to the suspended sentence of three years in December 3, 2010 in the Jeju District Court on November 25, 2010 due to the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Misappropriation).

【Criminal Facts】

[2014Gohap56]

1. Defendant A

(a) Property in breach of trust;

1) The Defendant, a general director of the Private Teaching Institutes (hereinafter referred to as the “Private Teaching Institutes”), had a duty to manage the fundamental property for education owned by the Private Teaching Institutes. Nevertheless, around April 25, 2008, the Defendant received KRW 100 million from Q that B participated in the instant project upon illegal solicitation, in relation to his/her duty, for the Defendant purchased a school site equivalent to 34,285m of “P” from B (hereinafter referred to as “instant school site”), and received KRW 34,285m of “P” (hereinafter referred to as “the instant school site”).

2) On May 26, 2008, the Defendant received the foregoing illegal solicitation from B, and received the credit loan of KRW 900 million in the name of R Co., Ltd. (hereinafter referred to as “R”), which was actually operated by the Defendant, from B, to the account in the name of the P Co., Ltd. (hereinafter referred to as “P”) that was arranged by B (hereinafter referred to as “EF”), and acquired the pecuniary benefits, which is the financial benefits of KRW 1.9 billion in total by receiving the credit loan of KRW 1 billion around June 17, 2008.

3) Around December 23, 2008, the Defendant received the aforementioned unlawful consignment from B, and acquired KRW 200 million from B.

4) Although the Defendant had the duty to manage the school site of this case as above, he received proposals from B to sell the above school site to C, the representative director of S Co., Ltd. (hereinafter “S”). The Defendant, along with D, introduced the Defendant’s plan to sell the school site of this case to C, and carried out the plan to sell the school site of this case with C, and carried out the relocation site of the school along with C. As such, the Defendant, in collusion with B on October 2010, purchased the school site of this case and newly built the apartment house, and acquired the CO’s new construction of the school site of this case through a free contract with B upon receiving unfair solicitation, and acquired KRW 500 million from B on February 24, 2011, KRW 200,000,000,000,000,000,000,000,000 won around 20,000,000 won around 20,015.

In order to pretend the fact about the acquisition of illegal profits acquired through the crime of paragraph (1), the Defendant had a mind to make it considerably difficult to specify, track, or detect the above illegal profits by receiving a remittance from an account under the name of a third party, depositing the cashier's checks acquired into the account under the name of a third party.

1) Around April 25, 2008, the Defendant received KRW 100 million from the crime as set forth in paragraph (1) (A) to the Defendant’s financial account under the name of his wife, and concealed the criminal proceeds equivalent to the said amount.

2) On June 4, 2009, the Defendant’s wife y against the Defendant’s KRW 20 million out of KRW 200 million of cashier’s checks acquired through the crime described in paragraph (a) at the NH Bank Nong-ro 407, NH Bank Nong-ro, Jeju-ro, 407.

The money deposited in the name of the Agricultural Cooperative (W) and concealed criminal proceeds equivalent to that of the money.

3) On October 8, 2010, the Defendant deposited KRW 110 million out of KRW 500 million out of the cashier’s checks acquired through the crime listed in paragraph (4) at the Jeju Agricultural Cooperative Branch located in 206, Nam-ro, Nam-ro, Jeju, Jeju, Jeju, and Jeju, in the name of the Defendant, to the Agricultural Cooperative (X) account in the name of R in which the Defendant actually operated, and concealed criminal proceeds equivalent to that amount. Accordingly, the Defendant pretended to acquire criminal proceeds, etc.

2. Defendant B

(a) Property in breach of trust;

The Defendant is the hub for the sale of real estate. A has a duty to manage the fundamental property for education owned by the private teaching institute as a general director of the private teaching institute.

1) As described in paragraph A(A)(4), the Defendant conspiredd with A to acquire KRW 500 million together with A upon receiving the foregoing illegal solicitation at the same time, time, and place.

2) As described in paragraph A-A-5(5) with A, the Defendant conspiredd with A to acquire KRW 700 million with A upon receiving the foregoing illegal solicitation at the same time, time, and place.

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

1) On October 11, 2010, the Defendant: (a) at the main point of Korea Bank located at the center of the city of Jeju, 56, the Defendant: (b) Y (a) an account of KRW 250 million, out of KRW 500,000,000, which was acquired by committing the crimes set forth in paragraph (a)(1).

It deposited into the bank account (Z) in the name of the bank and concealed criminal proceeds equivalent to the same amount.

2) On February 22, 2012, the Defendant deposited KRW 10 million out of KRW 700 million out of the cashier’s checks acquired through the crime listed in paragraph (2) in the Jeju bank linked to Jeju City, and concealed criminal proceeds equivalent to that amount. Accordingly, the Defendant pretended to acquire criminal proceeds, etc.

3. Defendant C, D

A. Defendant C is the representative director of S, and Defendant D is a director of AA (hereinafter referred to as “AA”), which is the subsidiary company of S, and Defendant D proposed a purchase plan by delivering the purchase plan of the school site of this case to Defendant C, which was known through his relative B, to Defendant C, and Defendant C promised to provide money and valuables in the overall direction of the above purchase plan. The Defendants conspired as above, and offered 50 million won to A and B by making such unlawful solicitation at the date and at the place specified in paragraph 1(a)(4) above.

B. As above, the Defendants conspired to make an illegal solicitation and offered KRW 700 million to A and B at the time and place specified in paragraph 1-A(5).

[2014Gohap162]

1. Defendant A

The defendant, as the chief director of a private teaching institute, is a high school teacher (hereinafter referred to as "high school"), and around November 2013, the defendant was issued KRW 50 million upon receipt of an illegal solicitation that he/she would employ AC, which is his/her own child, as a 0th regular teacher, from E, in respect of his/her duties at a high school coffee shop located in AB at Jeju.

As a result, the defendant acquired property in return for an illegal solicitation as to his duties as a person who administers another's business.

2. Defendant E

The Defendant made the foregoing illegal solicitation to the above A at the time and place specified in paragraph (1) and delivered KRW 50 million to the above A.

As a result, the defendant made an improper solicitation and provided property to the person who administers another's business.

Summary of Evidence

[2014Gohap56]

1. The legal statement of the witness AD;

1. Each legal statement of a witness A, B, C, D, Q, and AE;

1. The entries of each part of the defendant A, B, C, and D in the first trial record;

1. The prosecutor's statement concerning AF;

1. Each protocol of seizure;

1. Each investigation report (Evidence List No. 43, 44, 48, 57, 64, 87, 109, 126, 143, and 160) 1. A copy of each investigation report (Evidence List No. 43, 44, 48, 57, 64, 87, 109, 126, 143, and 160); copy of each receipt; copy of the summary statement of loans extended by the KN Savings Bank; copy of the credit ledger, etc. of the loan amount of KRW 90 million; copy of each letter; copy of the real estate sales contract; copy of the Korean Financial Intelligence Unit's reply; copy of the copy of the minutes of this society; copy of the monthly event of the KNF; copy of each letter; copy of the receipt; output of each account; output of each bank; output of the Bank of the S Account; details of the check paid to the KNF 201 and C10

1. Each legal statement of the defendant A and E;

1. Each investigation report and reports on the overlapping of corruption crimes related to the employment of teachers by the chief director of a school foundation or private teaching institute;

1. A copy of the public announcement of the plan to conduct a competitive examination for selection of teachers (No. 2013-24), copy of text messages, copy of A's mobile phone text messages, and documents related to the employment of teachers secured by the office of the president of the relevant private teaching institute;

[At the time of sale]

1. Investigation report (B's family relation certificate, etc. attached to records), residents, criminal records (B), investigation report (record review report of the accused case No. 8178 of the Republic of Korea Office), copy of the judgment dated 11, 25th 2010 (B), investigation report (Analysis report of the progress of case B), computerized data of the progress of case, and related judgments;

Application of Statutes

1. Article relevant to the facts constituting an offense and the selection of punishment;

A. Article 357(1) of the Criminal Act of Defendant A [a] Article 357(1) through (3) of the Criminal Act covers the possession of property in breach of trust by a single crime, choice of imprisonment, and choice of imprisonment] Articles 357(1) and 30 of the Criminal Act [a] Articles 357(1) and 357(1), and 30 of the Criminal Act (see, e.g., Supreme Court Decision 2014Do1324, May 29, 2014) separate from the aforesaid crimes (see, e.g., Supreme Court Decision 2014Do1324, May 29, 201). Each provision of Article 3(1)1 of the Act on Regulation and Punishment of Criminal Proceeds Concealment (a) of Punishment of Criminal Proceeds Concealment, etc.

B. Defendant B

Articles 357(1) and 30 of the Criminal Act (generally (see, e.g., Supreme Court Decision 2014Do1324, supra), Article 3(1)1 of the Act on Regulation and Punishment of Criminal Proceeds Concealment (the acquisition of criminal proceeds, etc.), and Article 3(1)1 of the Act on Regulation and Punishment of Criminal Proceeds Concealment (the most obtaining of criminal proceeds, etc.). Defendant C and D Criminal Act are Articles 357(2) and (1), and 30 (the selection of imprisonment with labor, including, but not limited to, giving rise to breach of trust) of the Criminal Act. Defendant E

Article 357(2) and (1) of the Criminal Act (the charge of giving property in breach of trust and the choice of imprisonment)

2. Handling concurrent crimes;

Defendant B: The latter part of Article 37 and Article 39(1) of the Criminal Act [mutual violation of the Act on Regulation and Punishment of Criminal Proceeds Concealment in Article 2-2(1) of the Criminal Act]

3. Aggravation of concurrent crimes;

A. Defendant A

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

B. Defendant B

Article 37 (former part of Article 37, Article 38 (1) 2, and Article 50 (Article 50 (Article 2-2 (b) 1) of the Criminal Act among the other crimes except for the violation of the Act on Regulation and Punishment of Criminal Proceeds Concealment

4. Suspension of execution;

Defendant C and D: Article 62(1) of the Criminal Code

5. Additional collection:

Defendant A and B: The latter part of Article 357(3) of the Criminal Act

6. Order of provisional payment;

Defendant A and B: Determination on the argument of the Defendants and defense counsel under Article 334(1) of the Criminal Procedure Act (2014 high-ranking 56)

1. Summary of the assertion

A. Defendant A and his defense counsel

1) At the time of each of the crimes in this part, Defendant A was merely a general director who is not the president of the OA, and the sales contract for the instant school site concluded by Defendant A with Defendant D and A was not subject to permission from the competent authorities. The contract becomes null and void by an illegal condition agreement under Article 151(1) of the Civil Act, and thus there was no risk of causing damage to the institute. Thus, Defendant A does not constitute a person who administers another’s business in relation to the OA’s relationship.

2) Under the facts charged, Defendant A received KRW 100 million from Q, KRW 200 million received from Defendant C, and KRW 500 million received from Defendant C at the intervals of Defendant A, the Defendant merely received KRW 330 million, which is the fact that the Defendant was appointed to the president and transferred the school in the future, and it is difficult to view this money as the payment for an illegal solicitation, as the down payment for the conditional sales contract concluded by the Defendant with the assumption that the Defendant would take office in the future and transfer the school in the future. In addition, the KRW 1.9 billion loaned by Defendant A from the highest mutual savings bank is based on the introduction of Defendant B, but it is not directly related to the sales of the school site of this case, and it cannot be

3) Defendant A did not have conspired with Defendant B with regard to the receipt of property in breach of trust as stated in paragraphs (1)-A, (4), and (5) of the judgment.

4) The Defendant A’s act of depositing the borrowed account as stated in Paragraph 1(b) of the holding does not constitute the act of acquiring criminal proceeds.

B. Defendant B and his defense counsel

1) Defendant A is merely a general director who is not the chief director of the OA at the time of committing each crime described in Article 2(a) of the judgment, and does not constitute a person who administers another’s business in relation to the EA.

2) Defendant B is not the subject of the crime of taking property in breach of trust, which is a true status, since there was no conspiracy with Defendant A as to each of the above crimes.

3) The sales contract of the instant school site concluded by Defendant A was based on the premise that Defendant A was subject to lawful procedures, such as resolution of the board of directors and permission from the competent authorities after Defendant A became the chief director of the pertinent school. Thus, the solicitation received by Defendant B and C cannot be deemed as illegal solicitation.

4) The act of depositing Defendant B’s borrowed account as stated in Paragraph B(b) of the holding does not constitute the most act of acquiring criminal proceeds, and Defendant B did not have any intention to disguise the acquisition of criminal proceeds.

C. Defendant C and his defense counsel

1) The content of the contract that the Defendant C entered into with the Defendant A is a substitute for the payment of the balance of the school site in return for the purchase of the instant school site and the construction of a new building. It is difficult to view that the contract violates the purpose of the establishment of the zero private teaching institute and causes a serious threat to its existence. Thus, Defendant C cannot be deemed as an unlawful solicitation.

2) Money paid by Defendant C to Defendant A and B is not paid as the rebates, but as the down payment and school paid as the price for the acquisition of the right of the snow business, and cannot be deemed as the price for illegal solicitation.

3) Defendant A and B did not have conspired with each other, and Defendant B does not constitute a person who administers the affairs of the OA. Accordingly, as to KRW 70 million and KRW 170 million, which Defendant C received from Defendant C and paid to Defendant A, but which did not have been paid as a result, the crime of giving property in breach of trust is not established.

D. Defendant D and his defense counsel

1) The solicitation made by Defendant C to Defendant A is based on the permission of the competent agency, and it does not prohibit Defendant C from entering into a new construction project in the form of a private contract for the relocation site of the school, so the said solicitation cannot be deemed as an illegal solicitation.

2) Since Defendant C decided to convert the amount of KRW 3.5 billion that Defendant C shall pay to Defendant A and B into a down payment when concluding a fixed contract, it cannot be deemed that Defendant C paid money to Defendant A and B as an illegal solicitation.

3) Since the sales contract between Defendant A and Defendant C was concluded by an individual rather than a private teaching institute, it does not have any effect on the private teaching institute as the board of directors resolution or the competent agency did not permit it, it cannot be said that the crime of giving and receiving the money following the conclusion and conclusion of the above contract is established.

2. Determination

Since the defendants and their defense counsel's arguments overlap in a considerable part, they will examine each issue as follows.

A. Whether Defendant A constitutes “a person who administers another’s business”

1) Relevant legal principles

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 pecuniary benefits in exchange for an illegal solicitation in connection with his/her duties. In the case of taking property in breach of trust, a person who administers another person's business in accordance with the principle of trust and good faith refers to a person who is deemed to have a fiduciary relationship to handle the business in the domestic relationship with the other person, and does not necessarily require that a third person has the authority to carry out the shower business in an external relationship with the third person, and does not require that the business is a comprehensive entrusted business. In addition, the grounds for taking property in breach of trust, i.e., the grounds for taking property in breach of trust, can also arise through statutory provisions, legal acts, customs, or business management (see, e.g., Supreme Court

Meanwhile, a person who administers another’s business falls under the scope of business based on his/her fiduciary relationship, and has acquired property or pecuniary benefits in return for an unlawful solicitation with respect to the duties that can reasonably be expected to be in charge in the future, and has practically taken charge of the duties regarding the solicitation. On the other hand, the integrity of a person who administers another’s business is damaged, thereby constituting the crime of taking property in breach of trust (see Supreme Court Decision 2012Do13719, Oct. 11, 2013).

2) Determination on the instant case

In addition to the following circumstances acknowledged by each of the above evidence, i.e., the educational foundation established by the defendant A's 's 's 's 's 's 's 's 's '' '' '' '' '' ''' ''' '' ''' ''' ''' ''' ''' ''' ''' ''' ''' ''' '''' '''' ''' '''' ''''' ''''' '''''' '''' '''' '''' '''' '''''' '''' '''' '''' ''' '''' ''' ''' ''' ''' '' ''' ''' ''' ''' ''''' ''''' ' '''''' ''''''''''' ''''''''' ''''' ' '''''' ' ' ' ' ' '. ' ' ' '. '. '. '. '.

B. Whether Defendant A’s solicitation constitutes “illegal solicitation”

1) Relevant legal principles

"Unlawful solicitation" in the crime of taking property in breach of trust under Article 357 of the Criminal Act is not necessarily necessary to the extent that it constitutes the substance of occupational breach of trust. It is sufficient to say that it goes against social rules or the principle of trust and good faith. In determining it, the content of solicitation, the amount of relevant consideration, form, and integrity of transactions, which are protected legal interests, should be comprehensively considered (see, e.g., Supreme Court Decision 2011Do1174, Nov. 14, 2013).

When a school foundation intends to sell its basic property, it shall obtain permission from the competent agency (see Article 28(1) of the Private School Act). In particular, among the property of a school foundation directly used for school education, the school foundation may sell the land in principle. However, exceptional cases are limited to cases where the school foundation satisfies strict requirements, such as securing the vessel of the school foundation and a part of the basic educational facilities for the improvement of the educational environment, etc. (see Article 12(1) and (2) of the Enforcement Decree of the Private School Act). If a school foundation violates this provision, it shall be subject to criminal punishment (see Article 73 subparag. 2 of the Private School Act). In light of the characteristics, public functions, etc. of a private school, securing basic property to conduct educational projects in a private school is essential and physical foundation may endanger the school’s existence due to lack of physical foundation, and thus, it is inevitable for the State to participate in the management of property of the private school within a certain extent in consideration of the national and social side effects arising therefrom (see, e.g., Constitutional Court en banc Decision 2013Hun-Ba13.

2) Determination on the instant case

A) As to the taking of property in breach of trust described in No. 1-A (1) through (3) of the holding

As seen earlier, the following circumstances are acknowledged by the evidence, i.e., ① the content of the solicitation that Defendant A received with respect to this part of the crime is to purchase the school site and to enable the development of real estate, as seen earlier, the content of the school site requiring strict requirements under relevant Acts and subordinate statutes. ② Defendant B made such solicitation to Defendant A in order to determine that the building site of the instant school could be paid enormous profits by preferentially securing business rights and (3) Defendant A was in need of funds to open R at the time of the crime, but it was economically difficult to obtain a loan from a financial institution. Defendant A responded to Defendant B’s solicitation to receive a loan from the best mutual savings bank through Defendant 3; ④ Defendant A purchased the land site of this case from the public prosecutor’s office to the public prosecutor’s office’s office’s office’s office’s order to use the same as that of the instant case; and ④ Defendant B did not receive an advance payment of KRW 100,000,000 from the public prosecutor’s office’s office’s office’s office’s order to use of the instant land.

In full view of the fact that Defendant A stated that he was not in the position of independent decision-making, and that Defendant A did not notify the fact of entering into the instant prior contract to the board of directors or the president of the private teaching institute, and that Defendant A demanded Defendant B, as the fact of entering into the instant prior contract is likely to be known to the local community, to transfer persons other than Jeju to the land to the parties to the instant prior contract and Q entered into the instant prior contract. In full view of the fact that Defendant A’s solicitation received from Defendant B at the time of the instant crime, Defendant A attempted to promote the sale of the instant school site and the transfer of the school site for the purpose of the instant private teaching institute, such as the improvement of educational environment, for personal interests, and thus, it is reasonable to deem that the instant request to be promoted for the purpose of the instant private teaching institute, which

B) According to relevant Acts and subordinate statutes, such as Article 26(1)5(a) of the Act on Contracts to Which the State Is a Party and Article 35(1) of the Rules on the Finance and Accounting of Private School Institutions, with respect to the receipt of property in breach of trust as stated in subparagraphs 1-A(4) and 5(5) of the holding, where a school juristic person intends to enter into a construction contract exceeding the estimated price of 200 million won as a construction work under the Framework Act on the Construction Industry, it shall be referred

In light of the following circumstances, which are personal evidence before the interpretation of the above-mentioned regulations, i.e., the contents of the solicitation that Defendant A received with respect to the crime of this part of this case were purchased and newly constructed apartment sites through a private contract, and the overall part of the solicitation is the sale of the land that requires strict requirements as seen earlier. According to the above relevant Acts and subordinate statutes, the new construction works should be conducted through a general competitive bidding exceeding 20 million won. ② Defendant C acquired the right to develop the site of this case from the private teaching institute and purchased the above site from the private teaching institute through Defendant A to arrange the above business for the purpose of purchasing the apartment site for the purpose of obtaining profits from the private teaching institute of this case. ③ Defendant A and the private teaching institute of this case’s purchase and sale contract of this case’s land of this case’s case’s case’s case’s case’s case’s case’s case’s case’s case’s case’s case’s case’s case’s case’s case’s case’s case of sale and sale contract of this case’s case’s case’s case’s case’s case’s case’s case.

C. Whether the property or property gains acquired by Defendant A and B constitute “illegal solicitation”

1) The money and financial interest described in sub-paragraph 1-A(1) and (2) of the holding

In light of the following circumstances acknowledged by each evidence, i.e., (i) borrowed KRW 2 billion in advance through financial institutions under the name of the Defendant, and (ii) Defendant B consistently stated that Q is necessary for the operation of R in the prosecutor’s investigation; (iii) Defendant A was in a state of economic difficulty at the time of the instant prior contract; (iv) Defendant A was in fact impossible to lend money from financial institutions at the time of the instant prior contract; and (v) Defendant A was given a public prosecutor’s loan agreement with Q2 at the time of the instant prior contract; and (v) Defendant A was given the above public prosecutor’s license agreement with Q2 at the time of signing the instant prior contract; and (v) Defendant B was given the above public prosecutor’s license agreement with respect to the instant loan agreement, and it was difficult to accept the above Defendant A’s loan agreement with the public prosecutor’s office for the purpose of obtaining the above advance loan of KRW 100 million in consideration of the following circumstances:

2) According to the evidence described in paragraph 1-A(3) of the judgment, the following circumstances are revealed, i.e., (1) around December 23, 2008 after Defendant A received illegal solicitation from Defendant B, and (2) from Defendant B’s prosecutorial investigation to this court, the substantial party to the instant prior contract claims Q, not Q, and in the circumstances, it appears that the above Defendant B paid the above money to Defendant A in order to secure the right to preferentially purchase the school site. At the time of delivery of the third money, Defendant B did not bear any obligation to Defendant B (According to a written confirmation of credit balance submitted by Defendant A to the prosecutorial office, Defendant B’s credit payment obligation for Defendant B would not be deemed to have been issued at the time of lending the money to Defendant B from the point of view that it would have been reasonable to view that the above Defendant B’s credit payment obligation would not have been issued at the time of lending the money to Defendant B to the above Defendant’s attorney at the time of 200 million won to December 16, 2017.

3) According to each evidence described in paragraphs (1) (4) and (5) of the judgment, the sales contract of this case states the following circumstances, i.e., (i) the purport that when the defendant B paid 3 billion won to the defendant A and the contract amount to the defendant A, the total of 3.5 billion won paid to the defendant A shall be the down payment. The above money is ultimately indicated to be reverted to the defendant A, claiming that he paid 3.5 billion won to the defendant A, not the private teaching institute, or the amount already paid to the defendant. (ii) The defendant C paid 1.2 billion won in accordance with the sales contract of this case to the defendant A, and the defendant A used the above money for personal purpose; (iii) the defendant A used the money for the above personal purpose; and (iv) the prosecutor's office stated that the defendant C also received 3.5 billion won in accordance with the sales contract of this case to the defendant Eul's office's apartment building investigation, and as a result, the prosecutor's office's investigation of this case did not accept the defendant C's proposal that the defendant A and the defendant Gap.

D. Whether Defendant A and B conspired

1) Relevant legal principles

In the context of co-offenders, a public offering does not require a certain type of punishment, but is sufficient to have implied communication with each other regarding the joint commission of a crime directly or indirectly, and even if there is no direct evidence thereof, it may be recognized by circumstantial facts and empirical rules (see, e.g., Supreme Court Decision 2008Do6987, Dec. 11, 2008). It is also possible for all accomplices to cooperate with each other in realizing the crime without realizing the elements of a crime, and to strengthen the decision on the act. Whether the case constitutes a public offering should be determined by comprehensively taking into account the degree of understanding the outcome of the act, the size of participation in the act, and intent to control the crime (see, e.g., Supreme Court Decisions 200Do1623, Dec. 12, 2006; 2007Do1623, Mar. 12, 207).

2) Determination on the instant case

앞서 설시한 각 증거에 의하여 인정되는 다음과 같은 사정, 즉 ① 피고인 B는 피고인 A의 학원 이사장 취임 지연과 자금 부족 등으로 더 이상 이 사건 학교 부지 사업을 계속하기 어렵게 되자, 8촌 관계인 피고인 D을 통하여 S 측에 위 사업에 관한 우선권을 넘기고 재산상 이득을 취득할 목적으로 피고인 D을 통하여 피고인 C을 위 사업계획에 대하여 설명하면서 피고인 C에게 이 사건 학교 부지의 매입을 제안하여 피고인 C이 위 제안을 받아들인 점, ② 이어 피고인 B는 2010. 8. 25.경 피고인 A에게 피고인 C, D을 연결시켜 주었고, 피고인 A은 피고인 D, S회사 AI 이사와 이 사건 학교 부지 매매 및 이고 이전 등 이 사건 매매계약에 관한 합의를 진행하여 결국 위 매매계,약을 체결하게 된 점, ③ 피고인 B는 이 사건 매매계약 체결 당시 입회하여 위 매매계약에 관하여 자신의 몫에 해당하는 돈을 확보하는 등 상당 부분 관여한 것으로 보이는 점, () 이 사건 매매계약서에는 '피고인 B가 피고인 A에게 기 지급한 30억 원과 계약서 작성시 피고인 A에게 지급한 5억 원의 합계 35억 원을 매매계약금으로 한다.'라는 내용이 명시되어 있는데, 위 30억 원은 피고인 B가 피고인 C, D에게 이 사건 학교 부지 매입을 추진하면서 피고인 A에게 신용대출금 20억 원을 포함하여 약 30억 원을 지급하였다고 말하여 이의 보전을 위하여 산정된 금액인 점, C 피고인 B는 이 사건 계약 체결 이후 위 계약금 약정에 근거하여 S 측으로부터 피고인 A의 몫으로 지급된 5억 원과 별도로 7억 원을 지급받았고, 위 계약 이전에도 경매대금 등으로 7억 원을 교부받은 점, (6) 피고인 AE, 그 피고인 C. 이 검찰 조사에서, 피고인 A, B가 있는 자리에서 피고인 A에게 위 30억 원에 관하여 언급하였을 때 별다른 말을 못하였다는 취지로 진술한 점, ① 피고인 A은 일본에 있는 형들을 설득할 목적으로 각 15억 원씩 지급하기 위하여 피고인 C 등에게 위 30억 원을 요구하여 위 계약 당시 35억 원으로 계약금을 정한 것이라고 주장하나, 그와 같은 요구를 한 시점에 관하여 일관된 진술을 하지 못한 점, ① 피고인 A의 경력, 학력 등에 비추어 '기 지급한'이라고 기재된 부분을 장래 지급할 것이라는 취지로 오해하고 이를 비롯한 계약내용을 제대로 확인하지 아니하고 계약서에 날인한다는 것은 사회통념 또는 경험칙에 반하는 점에 비추어 볼 때, 이 사건 매매계약에 관하여 그 내용 전반을 알고 있었던 것으로 보이는 점, ⑥ 또한 피고인 A은 검찰 조사에서, 결과적으로 위 35억 원 전부에 대하여 이 사건 학교 부지의 매입을 도와주는 것에 대한 사례금이었다고 진술한 점, ⑦ 앞서 본 바와 같이 피고인 A, B는 이 사건 학교 부지 매각에는 관련 법령에서 요구하는 이사회 의결, 관할청의 허가를 받아야 함을 알고 있었고, 그에 관하여 피고인 A이 독자적으로 결정할 수 없는 우선 사업권을 피고인 B(Q)에게 주려고 한 데 이어 피고인 C, D에게 위 부적절한 사업권을 재차 주려는 과정에서 이 부분 범행을 저지른 것인 짐 등을 종합하여 보면, 피고인 A, B는 피고인 C으로부터 부정한 청탁을 받고 피고인 C으로부터 그 대가를 받기로 공모하였다고 봄이 상당하고, 피고인 A으로서는 피고인 B가 수수한 구체적인 금액을 몰랐다고 하더라도 피고인 B가 받은 금액이 피고인 A이 도저히 예상할 수 없었던 고액이라고 볼 수도 없으므로, 결국 피고인 A, B는 피고인 A, B가 피고인 C으로부터 받은 금액 12억 원 전액에 대하여 배임수재죄의 공동정범이 성립하는 것인바, 이와 관련된 피고인들 및 변호인들의 주장은 받아들이지 아니한다.

E. Whether the validity of the instant sales contract affects the establishment of the crime of taking property in breach of trust

The crime of taking property in breach of trust is established when a person who administers another person's business acquires chemicals, etc. in exchange for an illegal solicitation in violation of his/her duties, and does not require that person to commit an act in violation of any duty or cause damage to the principal (see, e.g., Supreme Court Decision 2010Do11784, Feb. 24, 2011).

2) Determination on the instant case

In light of the above legal principles, even if the sales contract of this case is null and void on the grounds that it did not obtain permission from the competent authorities, it does not affect the establishment of the crime of taking property in breach of trust or taking property in breach of trust against the Defendants. Accordingly, the Defendants and the defense counsel’s arguments are not accepted.

F. Whether Defendant A and B violated the Act on Regulation and Punishment of Criminal Proceeds Concealment

1) Relevant legal principles

Act on the Regulation and Punishment of Criminal Proceeds Concealment refers to the disguised act of acquiring or disposing of criminal proceeds, etc. under Article 3(1)1 of the Act on the Regulation and Punishment of Criminal Proceeds Concealment means a disguised act of pretending that there exists no basis for the acquisition or disposition of criminal proceeds, or the ownership of criminal proceeds, etc. (see, e.g., Supreme Court Decision 2006Do7881, Feb. 15, 2008). Such an act may include the act of pretending criminal proceeds, etc. to belong to a third party, such as deposits of stop to an account in the name of another person called the so-called borrowed account (see, e.g., Supreme Court Decision 2007Do1004, Feb. 28, 2008).

2) Determination on the instant case

In full view of the following circumstances acknowledged by the evidence mentioned above, ① Article 9 of the prior contract of this case prepared between Defendant A and Q, and Article 8 of the sales contract of this case provide for each duty of confidentiality; ② Defendant A received 100 million won from Defendant Q to the agricultural cooperative account under the name of the Defendant’s wife, and partially deposited into the agricultural cooperative account under the name of Defendant A’s wife V and R after receipt of a cashier’s check from Defendant C; Defendant B received illegal solicitation from Defendant C and deposited part of the check into the bank account under the name of the Defendant’s name in the name of the Y bank account. Defendant B received a cashier’s checks, and then deposited part of the check into the bank account under the name of the Y bank account in the name of the chip account, and it is difficult to see that the deposit into the account under the name of a third party is a method of ordinary custody. Thus, Defendant A, B, and their defense counsel’s above assertion is rejected.

Reasons for sentencing

1. Defendant A

(a) The scope of applicable sentences under law: Imprisonment for one month to seven years; and

B. Application of the sentencing criteria (the sentencing criteria shall apply only to the crimes of taking property in breach of trust (No. 2014Gahap162) prosecuted after July 1, 2014).

[Extent of Recommendation] Basic Field 3 (at least 50 million won, less than 100 million won) of Acceptance of Breach of Trust (at least 1 year to 2 years)

[Disposition of Multiple Crimes] Imprisonment with prison labor for not less than one year (limited to imprisonment with prison labor for not less than one year, which is the lowest limit of the range of sentence that sets the sentencing criteria for concurrent crimes under the former part of Article 37 of the Criminal Act, between crimes for which the sentencing criteria are set and those for which the sentencing criteria are not set): 4 years, etc. of imprisonment with prison labor.

Although the Defendant is obligated to manage the fundamental property for education owned by the OAD as a general director of the OAD as an educational foundation, the Defendant was paid for the sale of the instant school site, which is an important fundamental property, for personal interests, in return for an illegal solicitation that enables the construction of new apartments. As a result, the Defendant’s crime significantly harmed the integrity and fairness in handling the affairs of the school foundation, as well as causing risks to the existence of the school. There is very significant nature of the crime, and the Defendant received the consideration in return for an illegal solicitation regarding the appointment of a teacher even after he/she was appointed to the president of the KAD. This part of the crime of taking property in breach of trust is also detrimental to the integrity and fairness of the school foundation’s personnel affairs. Considering the fact that the crime of taking property in breach of trust is also detrimental to the integrity and fairness of the school foundation’s personnel affairs, and the amount reverted to oneself out of the money received by the Defendant in return for illegal solicitation, the sentence equivalent to the Defendant’s liability for such crime is inevitable.

However, the defendant shall take into account the favorable circumstances of the defendant's age, character and conduct, environment, family relationship, health status, motive and circumstance of the crime, means and consequence of the crime, etc. other than punishment by minor fines on two occasions, and shall determine the punishment as ordered, taking into account all the various sentencing conditions as shown in the arguments of this case, such as the defendant's age, character and conduct, family relationship, health status

2. Defendant B (the sentencing criteria shall not apply after being indicted for implementing the sentencing criteria);

(a) Scope of applicable sentences under law: Imprisonment for one to five years, and imprisonment for one to seven years; and

(b) Determination of sentence: Five months of imprisonment and three years of imprisonment; and

The defendant proposed that a general director of a private teaching institute A sell the site in advance, which is an important fundamental property of a school juristic person, on the condition that a financial institution offers loans to a general director A, thereby significantly impairing the integrity and fairness of the school juristic person's administrative affairs, and causing risks to the existence of the school. The crime is very significant, and the defendant has led to the crime of this case, such as proposing A a sale plan of the site in this case, aiding A to obtain illegal prices or mediating a person who will purchase a site in this case. The defendant was sentenced to a suspended sentence of one year and six months for a violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Misappropriation) on November 25, 2010. The defendant was sentenced to a suspended sentence of one year and six years for a crime of violating the Act on the Aggravated Punishment, etc. of Specific

Considering the fact that each of the crimes in this case was committed without any person, and that the amount reverted to the Defendant, among the money received in return for illegal solicitation, was a large amount of KRW 870,000,000,000, the Defendant should be punished strictly.

However, the defendant has no record of being punished for the same kind of crime, and the fact that some crimes are concurrent crimes under the latter part of Article 37 of the Criminal Act shall be considered as favorable circumstances, and the defendant's age, character, conduct, environment, family relationship, health status, motive and circumstance of the crime, means and consequence of the crime, etc. shall be determined as ordered by considering all the various sentencing conditions specified in the arguments of this case, such as the circumstances after the crime.

3. Defendant C (the sentencing criteria shall not apply after being indicted before the sentencing criteria are implemented);

(a) The scope of applicable sentences under law: Imprisonment for one month to two years; and

(b) Determination of sentence: One year of imprisonment and two years of suspended sentence; and

Considering the fact that the Defendant has undermined integrity and fairness in the management of affairs of school juristic persons by making illegal solicitation to a director of a school juristic person for economic benefits, and that the amount provided by the Defendant in return for illegal solicitation is KRW 1.2 billion, the nature of the Defendant’s crime is not difficult.

However, the crime of this case is somewhat passively responding to the proposal A, B, etc. In the end, the defendant suffered only property damage equivalent to the above increased amount without any particular benefit, and the defendant has no record of being punished for the same kind of crime, and there is no record of being sentenced to a fine more severe than the fine, and the defendant's age, character and behavior, environment, family relationship, health status, motive and circumstance of the crime, means and consequence of the crime, and circumstances after the crime, etc. shall be determined as ordered by the order, considering all of the various sentencing conditions shown in the argument of this case, such as the defendant's age, character and behavior

4. Defendant D (the sentencing criteria shall not apply after being indicted before the sentencing criteria are implemented);

(a) The scope of applicable sentences under law: Imprisonment for one month to two years; and

(b) Determination of sentence: Imprisonment with prison labor for not more than ten months and two years of suspended sentence; and

The Defendant, in collusion with C, has undermined integrity and fairness in the administration of the affairs of school juristic persons by preventing the instant crime. Considering that the Defendant directly becomes a party to a contract to sell and purchase the school site or was involved in the instant crime by preparing a contract, etc., the nature of the Defendant’s crime is not easy.

However, the defendant appears to have responded to the proposal A, B, etc., and there is no benefit acquired by the defendant by the defendant, and the defendant has a particular criminal record except for those sentenced to a minor fine for any other type of crime prior to 20 years, and the defendant's age, character and conduct, environment, family relationship, health status, motive and circumstance of the crime, means and consequence of the crime, and other various sentencing conditions specified in the argument of this case, such as the circumstances after the crime, shall be determined as ordered.

5. Defendant E. Legal penalty: Imprisonment with prison labor for one month and two years.

(b) Application of the sentencing criteria;

[Extent of Recommendation] Aggravation of Breach of Trust No. 2 (at least 50 million won, less than 100 million won) (at least 10 million won)

【Specially Ineligible Persons】 Positive Materials

(c) Determination of sentence: Six months of imprisonment; and

The Defendant, in lieu of the instant crime, has undermined integrity and fairness in dealing with the management of personnel affairs of school juristic persons by committing the instant crime, and the Defendant actively solicited the appointment of a teacher by granting money and valuables to A, who is the chief director of the instant educational institute, and the Defendant was sentenced to imprisonment with prison labor for three years for the same crime, such as the offering of bribe, around June 17, 201, and the Defendant did not commit the instant crime and committed the instant crime without among those who were under the suspended execution (which is disqualified from the said suspended execution).

However, the Defendant is seriously against the Defendant’s confession of the instant crime, and when this judgment becomes final and conclusive, the Defendant shall additionally be sentenced to imprisonment with prison labor for three years, which has been suspended due to the invalidation of the said suspended sentence (three years and six months), and the Defendant’s age, character, character, environment, family relationship, health status, criminal record relation, motive and circumstance of the instant crime, means and consequence of the instant crime, and other various sentencing conditions indicated in the pleadings, including the circumstances after the instant crime, shall be determined by deviating from the lower limit of the scope of sentence recommended to the sentencing criteria and making the sentence like the order.

The presiding judge, Gimyang-ho

Judge Shin Dong-chul

Judges Complaints