Defendant 1 and one other

Both parties

Maternity

Attorneys Kim Jong-soo et al.

Seoul Central District Court Decision 2008Da766, 1075 decided Dec. 5, 2008

Of the judgment of the court below, the part on Defendant 1 is reversed.

Defendant 1 shall be punished by imprisonment for not less than three years and six months.

One hundred and fifty days of detention before the pronouncement of the judgment below shall be included in the above sentence.

50,000,000 won shall be additionally collected from Defendant 1.

All appeals by Defendant 2 and Prosecutor are dismissed.

1. Summary of grounds for appeal;

A. Defendant 1

(1) misunderstanding of legal principles or misconception of facts concerning occupational breach of trust

(A) As to the absence of property damage

① Since the delivery closing of ○○ Company and △△ Unemployment is within the scope of normal business profits naturally acquired by other suppliers, it cannot be deemed that any property damage has occurred to Nonindicted Co. 1.

② Since the supply unit price of the feed additives supplied by Nonindicted Co. 1 and △ Unemployment (hereinafter “instant feed additives”) was fully reflected in the calculation stage of the production of mixed feed finished products and manufacturing cost, and the final sales price calculation stage, it shall be deemed that the economic value of the payment due to the act of breach of trust and the return-in-sale is equivalent to each other in the process of supply-manufacturing-sale. On the other hand, there is no proof that only the supply unit price which was lower than the supply unit price actually concluded was reflected in the calculation of the cost and the final sales price.

(B) As to the fact that there was no criminal intent for breach of trust

Defendant 1 only demanded Defendant 2 to deliver business profits earned by another supplier to himself or Nonindicted 2. Defendant 1 did not instruct Defendant 2 to raise business profit by mixing low domestic feed additives with the feed additives of imported complete products. As such, Defendant 1 did not intend to cause property damage to Nonindicted Company 1.

(2) misunderstanding of legal principles as to occupational embezzlement or violation of the rules of evidence

Defendant 1, as the representative director of Nonindicted Co. 1, who is the executive organ, issued a public diagnosis to the executive officers of the National Agricultural Cooperative Federation (hereinafter “CFF”) for the business convenience of Nonindicted Co. 1, and delivered it for personal interest. Thus, Defendant 1 cannot be deemed to have arbitrarily embezzled public diagnosis.

(3) misunderstanding of facts as to the receipt of bribe from Nonindicted 3

Defendant 1 was delivered KRW 11 million to Nonindicted Co. 5’s adviser Nonindicted Co. 3 at the time of Nonindicted Co. 5’s receipt of a check from Nonindicted Co. 3, and there was no fact that he received any solicitation related to the custody and transport of the secret custody of Nonindicted Co. 6 or Nonindicted Co. 5, and this is proved that Defendant 1 paid Defendant 1’s debt to Nonindicted Co. 6, including the check received from Nonindicted Co. 3. Thus,

(4) misunderstanding of facts as to the receipt of bribe from Nonindicted 4

Defendant 1 was paid KRW 10 million to the interest amount on the money lent to Nonindicted 4, and there is no relevance to duties.

(5) The assertion of unreasonable sentencing

The punishment of four years of imprisonment with prison labor imposed on Defendant 1, and the surcharge of 51 million won is too unreasonable.

B. Defendant 2

(1) misunderstanding of legal principles or misconception of facts

Although Nonindicted Co. 1 received the instant feed additives at a price that reflects the normal margin, and used them in the mixture of feed, and the feed additives were not unnecessary, and since its sales profit does not fall short of quality, the instant feed additives were not completely different from the supply by the ordinary feed additives, the lower court recognized the risk of property damage due to an abstract and constructive determination that ○○ Company and ○○ Unemployment may supply the instant feed additives at a price lower than that of Nonindicted Co. 1, by misapprehending the legal doctrine on property damage in breach of trust and misunderstanding the facts. Furthermore, the lower court recognized the risk of property damage by misapprehending the legal doctrine on property damage in breach of trust, and thereby finding that the instant feed additives could be supplied at a lower price than that of Nonindicted Co. 1.

(2) The assertion of unreasonable sentencing

The sentence of two-year suspended sentence is too unreasonable for one year of imprisonment sentenced by the court below to Defendant 2.

(c) Prosecutors;

(1) misunderstanding of legal principles or misconception of facts

Since Nonindicted Co. 1 could receive the instant feed additives at the price calculated by deducting the total amount of profits acquired by Defendant 1 or Nonindicted 2 through price negotiations, Nonindicted Co. 1 could have received the instant feed additives, even though the amount of damages of Nonindicted Co. 1, a victimized company, is specified as KRW 1.2 billion, the lower court acquitted the Defendants of the charges of violating the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Misappropriation) against the Defendants on the ground that the amount of damages is not specified.

(2) The assertion of unreasonable sentencing

Each sentence sentenced by the court below to the defendants is too uneasible.

2. Judgment on misconception of facts or misapprehension of legal principles

D. The defendants and the prosecutor's arguments as to occupational breach of trust are examined together.

(1) As to property damage

(A) The judgment of the court below

1) Based on the evidence duly adopted and examined, the lower court determined that, inasmuch as Nonindicted Co. 1 was in a position clearly favorable in the price negotiation to receive the instant feed additives identical or similar to the instant feed additives, and thus, Defendant 1 was able to obtain economic benefits by receiving a lower price through the price negotiation with other companies, etc., but Defendant 1 did not have an opportunity to receive economic benefits at a lower price by violating his/her duties for personal benefits of himself/herself or Nonindicted 2, and received an ordinary supply price, thereby causing property damage equivalent to the difference.

① Even if Defendant 1 was not a specific business entity instructed by Defendant 1, it appears that the ingredients of which are identical or similar to the feed additives could have been supplied from other business entities. As such, Nonindicted Company 1 was in a favorable position for price negotiations with the feed additives supplier.

② Defendant 2 supplied unexpected feed additives; Defendant 1 paid most of the profits to Defendant 1; thus, Defendant 2 seems to have little interest in determining the supply price, if the price exceeds the supply cost.

2) Furthermore, in full view of the following circumstances acknowledged by the evidence duly adopted and investigated, the lower court determined that it is difficult to readily conclude that Nonindicted Co. 1 suffered property damage equivalent to that of Defendant 1 and Nonindicted 2, on the part of Nonindicted Co. 1, inasmuch as it is difficult to readily conclude that Nonindicted Co. 1 could receive the same or similar feed additives as the instant feed additives at the deducted price from all the benefits paid to Defendant 1 or Nonindicted 2, and that it is difficult to readily conclude that Nonindicted Co. 1 suffered property damage in the same amount as the benefits acquired by Defendant 1 and Nonindicted

① Defendant 2 set and supplied the price of the instant feed additives according to the ordinary margin at the time of the delivery of the feed additives, and paid the profits acquired therefrom to Defendant 1 and Nonindicted 2.

② When Defendant 2 supplies the instant feed additives at a deducted price with all profits paid to Defendant 1, it is difficult to expect that the supply price of other feed additives, which are supplied to other companies, may also be discounted.

③ Defendant 2 paid benefits to Defendant 1 in accordance with the direction of Defendant 1, the representative director of Nonindicted Co. 1, in order to avoid harsh or disadvantage that Defendant 1 could suffer from the supply of existing feed additives. Even in the case of normal supply to Nonindicted Co. 1, there is no special circumstance in which it is anticipated that both Defendant 1 and Nonindicted 2 should waive and deliver all profits equivalent to the amount paid to Defendant 1 and Nonindicted 2.

3) Based on such determination, the lower court deemed that there was no proof of a crime of occupational breach of trust under the Act on the Aggravated Punishment, etc. of Specific Economic Crimes against the Defendants on the charge of violating the Act on the Aggravated Punishment, etc. of Specific Economic Crimes that the amount of profit is more than 50 million

(B) Judgment of the court below

Examining the reasoning of the lower judgment in light of the records, the lower court’s fact-finding and determination are justifiable.

Furthermore, even if there was no change in the market share of the victim non-indicted 1 corporation although the actual supply price of the instant feed additives was reflected in the mixed feed finished product price even though the instant feed additives could have been supplied at a lower price, it is reasonable to deem that the damage was caused by taking separate measures, such as taking measures to strengthen the market competitiveness of mixed feed finished products, which is 20% of the combined feed market share, and thus, the Defendants’ assertion that the instant feed additives did not incur property damage as it is reflected in the combined feed price as it is, is not acceptable.

Therefore, the judgment of the court below is not erroneous in the misapprehension of legal principles or legal principles as pointed out by the defendants and prosecutor.

(2) As to the criminal intent of breach of trust

Defendant 1’s waiver of the price negotiations for the interests of Nonindicted Co. 1 and, in order to have the victim Nonindicted Co. 1 acquire it directly or let Nonindicted Co. 2 acquire it, by establishing a separate company under the direction of Defendant 2, to supply new feed additives to Nonindicted Co. 1, and so long as Defendant 1 or Nonindicted Co. 2 acquired the profit, it is clearly recognized that Defendant 1 had criminal intent to commit criminal breach of trust. This is the same even if Defendant 1 demanded other suppliers to deliver only normal operating profits that he acquired to Defendant 2, and there was no order to put domestic feed additives, which are valuable in the import complete product feed additives, to put them into business profit in an unjust manner. Accordingly, it is justifiable that the lower court recognized Defendant 1 as criminal intent to commit criminal breach of trust.

E. As to Defendant 1’s assertion of mistake of fact

(1) misunderstanding of legal principles as to occupational embezzlement, etc.

The following facts are acknowledged based on the evidence duly adopted and examined by the court below and the witness Nonindicted 7’s partial statement in the court:

① On December 20, 2005, Defendant 1 ordered the 30 million won public diagnosis as “public diagnosis” in amounting to KRW 14,000,000 per piece of money for promotion of sales in 2005, and ordered the NAF to prepare an annual gift to the executive officers of the NAF by purchasing additional public diagnosis amounting to KRW 30,000,000 under the name of customers.

② On January 12, 2006, Nonindicted Co. 7, 2006, the head of planning headquarters of Nonindicted Co. 1 Co. 1, 2006: (a) was unable to use public funds to give 30 million won gifts to executive officers of the Agricultural Cooperative Federation; and (b) as if the outstanding livestock farmers purchased a total of KRW 30 million worth of KRW 450,000 for each customer's goods, he prepared a false draft statement, and obtained approval from Defendant 1; (c) on January 18, 2006, 100 exchanges of KRW 60 and KRW 150 purchase a total of KRW 7,00.

③ On January 20, 2006, Non-Indicted 7 delivered to Non-Indicted 8’s chief executive officer for the livestock economy of the NAF, Non-Indicted 9 of the livestock economy affairs of the NAF, Non-Indicted 10 of the Standing Director, Non-Indicted 11 of the NAF, Non-Indicted 12 of the NAF, Non-Indicted 12 of the NAF, Non-Indicted 12 of the NAF, Non-Indicted 12 of the executive secretary of the NAF, Non-Indicted 12 of the NAF, who was kept in his book inside his office.”

④ The chief executive officer of the NAF shall have the right to recommend directors of Nonindicted Co. 1, and the right to promote and transfer to the officers and employees of the NAF, and the remaining executive officers shall have the right to coordinate the executive officers and employees of Nonindicted Co. 1.

The above facts are based on the facts of recognition, and Defendant 1 embezzled the public diagnosis owned by the non-indicted 1 corporation to the executive officers and employees of the NAF for personal purposes. In addition, since the representative director conducts it within the scope of legal order such as the corporate activity law, and thus it is possible to bring profits to the company, it is not permissible to use the criminal act such as offering of bribe as a means of corporate activity. Thus, it is justifiable for the court below to find Defendant 1 guilty of the charge of occupational embezzlement.

(2) misunderstanding of facts as to the receipt of bribe from Nonindicted 3

(A) Defendant 1’s legal action

Defendant 1, who received a total of KRW 11 million from Nonindicted 3 on two occasions, and there was no entrustment of business affairs related to Nonindicted 5 Stock Company at the time of delivery of that money.

(B) Job relationship and bribe in the crime of bribery

The legal interest in the crime of bribery is the process of performing the duties of a public official, the trust in the society, and the uncertainty of the act of performing his duties. Since the bribery does not require any solicitation or unlawful act, there is no special solicitation to recognize the bribe of money and valuables received, it is sufficient that money and valuables have been received in connection with his duties, and there is no need to have an individual job act or a quid pro quo relation. When a public official receives money and valuables or other benefits from a person subject to his duties, it is deemed that it is merely an exceptional consideration in light of the social norms, or it is not related to his duties unless there are special circumstances, such as where it is clearly recognized that a private pro rata relation is due to the need for decentralization. If a public official received money and valuables in connection with his duties, even if he received them, such money and valuables shall be deemed a bribe (see, e.g., Supreme Court Decisions 201Do3579, Oct. 12, 201; 2004Do4284, May 28, 2004).

(C) Judgment of the court below

The following facts are recognized according to the evidence duly examined and adopted by the court below, the legal statement of Nonindicted 3’s witness at the court, and the inquiry reply to the fact-finding regarding Nonindicted Co. 1 in this court:

① On March 107, 2007, Non-Indicted 6’s representative director of Non-Indicted 5, who was newly appointed around March 2007, was urged by Non-Indicted 8’s representative director of Non-Indicted 1 Co. 8 to waive the keeping and transport of the imported mail on the port of Busan. On March 10, 2007, Non-Indicted 6 paid KRW 10 million to Non-Indicted 3, who was in office as an adviser of Non-Indicted 5 Co. 1 at Defendant 1’s request, paid a total of KRW 100,000 won of cashier’s checks to Non-Indicted 5 Co. 3, who was in office as an adviser of Non-Indicted 5 Co. 1

② After receiving the above KRW 10 million from Nonindicted 6, Nonindicted 3 found Defendant 1 as Defendant 1’s office for the head of the NAFFF, and issued KRW 500,000 out of the above cashier’s checks to Defendant 1.

③ Defendant 1 received the money from Nonindicted 3 on or before March 2007. Rather, he paid the money to Nonindicted 3 each time, and even at the time Nonindicted 3 received the said KRW 5 million from Nonindicted 3, Defendant 1 was aware of the fact that Nonindicted 3 was in office as an adviser for Nonindicted Co. 5 and was receiving and using the corporate card as an adviser, and on March 16, 2007, deposited the said KRW 5 million into the Agricultural Cooperative account in the name of Nonindicted 13, Defendant 1’s second account.

④ On September 2007, Nonindicted 8’s representative director Nonindicted 1 corporation was placed in a situation where it is difficult to maintain his position as the representative director of Nonindicted 1 corporation without approval of the appointment of the Ministry of Agriculture and Forestry, who is the competent department under the Public Service Ethics Act.

⑤ On September 4, 2007, Nonindicted 6, as the president for the Livestock Economy of the Agricultural Cooperatives Federation, deposited the relationship with Defendant 1, an ex officio director of Nonindicted Company 1, as the president for the Livestock Economy of the Agricultural Cooperatives, and withdrawn KRW 100,000 cashier’s checks from the account under the name of Nonindicted Company 5, and issued KRW 10,000 to Nonindicted 3, and issued the said KRW 10 million to Defendant 1 for the same purpose.

④ On September 7, 2007, Defendant 1 received 60 million won from Nonindicted 6 the above 10 million won cashier’s checks from Nonindicted 6 and deposited this money into the Agricultural Cooperative account under the above Nonindicted 13, a borrowed account.

Examining the above facts in light of the legal principles on business relationship and bribery in the crime of bribery, Defendant 1 received a total of KRW 11 million from Nonindicted 3 on two occasions in relation to his duties. Therefore, it is justifiable for the lower court to have found Defendant 1 guilty of the charges of bribery to the same purport.

(3) misunderstanding of facts as to the receipt of bribe from Nonindicted 4

Based on the evidence duly adopted and examined by the court below, it was justified in the judgment of the court below that the non-indicted 4 borrowed KRW 250 million from the defendant 1 to March 5, 2004 on five occasions under the name of the establishment and operation fund of the dedicated dedicated to the dedicated to the dedicated to the dedicated to the dedicated to the dedicated to the dedicated to the dedicated to the dedicated to the dedicated to the dedicated to the dedicated to the dedicated to the dedicated to the dedicated to the dedicated to the dedicated to the dedicated to the dedicated to the dedicated to the dedicated to the 2003 to October 12, 2007, and paid the principal and interest of KRW 500,000 through KRW 6 million each month and arranged the obligation and obligation with the defendant 1 to reduce the supply cost of the dedicated to the dedicated to the dedicated to the dedicated to the 10th dedicated to the dedicated to the 10th dedicated to the dedicated to the 10th Do.

3. Judgment on the assertion of unfair sentencing

F. As to Defendant 1

Defendant 1 was given a bribe of KRW 30 million in total four times, including the receipt of a bribe of KRW 51 million from an employee, and was established by a separate formal company and acquired unfair benefits equivalent to KRW 1.20 million in depth and did not reflect in mind the error. However, Defendant 1 returned KRW 30 million, which he received from Nonindicted 14, was not subject to criminal punishment. Defendant 1 served in the Agricultural Cooperative for the last 46 years, including the fact that there was no history of criminal punishment, and the market share of Nonindicted 1 was significantly increased during the period of his office as the representative director of Nonindicted 1 Co. 1 Co., Ltd.; Defendant 1 agreed with Nonindicted 1 Co., Ltd. 1 Co., Ltd.; Defendant 1 was given a bribe of KRW 51 million in total; Defendant 1 et al. were al. al.; Defendant 1’s relative and relatives wanted to take advantage of their age, character and behavior, motive of Defendant 1’s criminal act; Defendant 1’s motive, motive and condition of criminal punishment.

G. Defendant 2

Defendant 2 actively participated in Defendant 1’s occupational breach of trust. However, considering the fact that there was no record of criminal punishment, other than punishment imposed once by a fine, Defendant 2’s age, character and conduct, family environment, motive, means, recovery, outcome, and circumstances after the crime, the sentence imposed by the lower court to Defendant 2 is reasonable.

4. Conclusion

Therefore, since the appeal by Defendant 1 is well-grounded, the part of the judgment below against Defendant 1 among the judgment below is reversed pursuant to Article 364(6) of the Criminal Procedure Act, and the appeal by Defendant 2 and the prosecutor against the Defendants is dismissed in accordance with Article 364(4) of the Criminal Procedure Act, since all of the appeals by Defendant 2 and the prosecutor are without merit.

The criminal facts and the summary of evidence recognized by this court against Defendant 1 are the same as the corresponding columns of the judgment of the court below, and they are quoted as they are in accordance with Article 369 of the Criminal Procedure Act.

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

Articles 356, 355(2), and 30 of the Criminal Act (each of the occupational breach of trust, each of which covers ○○○ and △ unemployment), Articles 4(1) and 2(1)3 of the Act on the Aggravated Punishment, etc. of Specific Crimes, Article 129(1) of the Criminal Act (the receipt of bribe from Nonindicted 14), Articles 356 and 355(1) of the Criminal Act (the receipt of bribe from Nonindicted 14), Articles 4(1) of the Act on the Aggravated Punishment, etc. of Specific Crimes, Articles 133(1), 129(1) (each of the offering of bribe, choice of imprisonment), Article 4(1) of the Criminal Act, Article 129(1) of the Criminal Act (the selection of imprisonment with labor), Article 129(1)(3) and 4 of the Act on the Aggravated Punishment, etc. of Specific Crimes.

1. Aggravation of concurrent crimes;

Article 37 former part of Article 37, Article 38 (1) 2, and Article 50 of the Criminal Act [Aggravation of concurrent crimes for the punishment prescribed for the violation of the Act on the Aggravated Punishment, etc. of Specific Crimes, the largest punishment for which is applicable]

1. Discretionary mitigation;

Articles 53 and 55(1)3 of the Criminal Act

1. Calculation in the number of detention days before sentencing;

Article 57 of the Criminal Act

1. Additional collection:

Article 134 of the Criminal Act

It is so decided as per Disposition for the above reasons.

Judges Cho Jae-jin (Presiding Judge)