(영문) 부산지방법원 2016.9.28.선고 2016고단2198 판결

Defendant A’s imprisonment of two months, Defendant B’s imprisonment of three months, and Defendant C’s imprisonment of six months, respectively: Provided, That the execution of each of the above sentence shall be suspended for two years from the date this judgment became final and conclusive. KRW 2,00,000 from Defendant A, and KRW 3,00,000 from Defendant B shall be collected respectively.

Reasons

Criminal facts

On February 3, 2016, Defendant A was sentenced to imprisonment with prison labor for a violation of the National Sports Promotion Act at the Busan District Court on February 3, 2016, two years of suspended execution, and Defendant B was sentenced to imprisonment with prison labor for the same crime in the same court on the same day and two years of suspended execution.

Defendant A and B are eligible for the issuance of sports betting tickets in around 2013, who served as the I professional referee of the HM, a sports event constituting a specialized sports, and Defendant C is a scarter of J Co., Ltd., an affiliated sports organization (hereinafter “J”). The players, managers, coaches, referees of sports events subject to the issuance of sports betting tickets and the executives and employees of an affiliated sports organization are not entitled to receive property or property benefits in return for an unlawful solicitation in connection with the sports event subject to the issuance of sports betting tickets, and no one may provide such property or property benefits.

1. Defendant A

A. A. Around January 2013, the Defendant accepted one million won in cash from the Defendant’s illegal solicitation that “in light of the judgment of the J Games, in favor of the J,” at L’s nearby coffee shop located in Gohap-gun, Chungcheongnam-gun, Chungcheongnam-gun, the Defendant received one million won in cash.”

B. Around August 2013, the Defendant received one million won in cash in exchange for an illegal solicitation from C at the Defendant’s shop near the house, which is located in Gyeongsa-gun, in exchange for an illegal solicitation. Accordingly, the Defendant received money and valuables in return for an illegal solicitation in regard to sports as a judgment on sports events constituting specialized sports.

2. Defendant B

A. On April 26, 2013, the Defendant received one million won in cash from C to the effect that “In light of the judgment of the JJ, I would like to request a judgment in favor of theJ” from C before “Nuss in the area adjacent to the Nmotoir in Seo-gu Seoul Metropolitan City M.”

B. On September 7, 2013, the Defendant received cash of one million won in exchange for illegal solicitation from C at the same place as the foregoing paragraph (a). On October 29, 2013, the Defendant received cash of one million won in exchange for illegal solicitation from C at the same place as the foregoing paragraph (a).

Accordingly, the defendant received money and valuables in return for illegal solicitation in regard to sports events as a judgment of sports events falling under professional sports.

3. Defendant C.

The Defendant, from January 2013 to October 29, 2013, issued to A and B, as indicated in the above paragraphs 1 and 2 of the same year, “A request to make a judgment in favor of the J when considering the judgment of the J,” five million won in total, along with an illegal solicitation to the effect that “A and B, in favor of the J” was “a request to make a judgment.”

Summary of Evidence

1. Defendants’ respective legal statements (However, part of Defendant C’s legal statements)

1. Each legal statement of a witness A and B;

1. Examination protocol of Defendant C by the prosecution (part)

1. A copy of each protocol of examination of the suspect against the defendant A and B by the prosecution;

1. An investigation report (a report accompanied by P and Q mobile phone messages), an investigation report (a report accompanied by the message details of P and R), an investigation report (a report accompanied by a A inquiry contract), and an investigation report (a report accompanied by a J match Book at the time that S trial B received money);

1. Investigation report (Attachment of judgment of the first instance court at B or A);

Application of Statutes

1. Article applicable to criminal facts;

A. Defendant A and B: Article 48 Subparag. 4 and Article 26(3) of the former National Sports Promotion Act (Amended by Act No. 12348, Jan. 28, 2014; hereinafter the same shall apply)

B. Defendant C: Article 48 Subparag. 3 and Article 26(3) of the former National Sports Promotion Act

1. Selection of punishment;

Each Imprisonment Selection

1. Aggravation for concurrent crimes;

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

1. Suspension of execution;

Article 62 (1) of the Criminal Code

1. Collection (Defendant A and B);

Determination on the assertion of Defendant C and defense counsel under Article 51(3) and (2) of the former National Sports Promotion Act

1. The assertion;

The defendant C and his defense counsel asserted that although the defendant C gave cash to the defendant A and B as above, it does not correspond to the illegal solicitation to request the favorable judgment, they are merely used as money or cost of living as a part of the S community.

2. Determination

A. Relevant legal principles

In the crime of taking property in breach of trust under Article 357(1) of the Criminal Act, "illegal solicitation" means that solicitation goes against social norms and the principle of trust and good faith. In determining this, the contents of solicitation, the amount and form of the property received or provided in relation thereto, and the integrity of the administrator of affairs, who is the legal interest protected by the law, shall be comprehensively examined. The solicitation is not necessarily explicitly required, but it is not always explicitly required to be made, and it is inevitable even if it is implicitly made (see, e.g., Supreme Court Decision 2009Do10681, Sept. 9, 2010). Furthermore, such legal principle also applies to "illegal solicitation" as stipulated in Article 26(3) of the former National Sports Promotion Act, which prohibits the receipt, request, or promise of property or property in return for an illegal solicitation in relation to the sports subject to

B. In the instant case

In full view of the following facts and circumstances that can be recognized by each of the above evidence, Defendant C’s issuance of money to Defendant B and B at the time of the trial of the J Games to the effect that “Defendant C and B may request the judgment favorable to J.” In addition, Defendant C and B were in need of high level of integrity, and Defendant C’s above solicitation constitutes “illegal solicitation contrary to social rules or the good faith principle.” Accordingly, Defendant C and the defense counsel’s assertion is not acceptable, on the other hand, at least 10 days before Defendant C’s arrival of the above case’s bar call or personnel affairs at the bar, and Defendant C did not directly appear in the preceding day of the trial on April 27, 2013.

② Defendant A knew with Defendant C as the same S, and did not have any special relationship with each other to the extent that he did not engage in money transaction. At the time of his request, Defendant C found Defendant A to have known that “I would like to have been able to ask students to talk with his students, and I would like to look back to I would like to have called “I would like to ask students to see that I would like to have been able to ask students to see that I would like to have been able to ask students to see that I would have been able to ask students to see that I would have been able to ask students to see that I would have been able to ask students to see that I would have been able to ask students to see that I would have been able to see that I would have been able to ask for a 1 million won of cash when I would like to have been able to ask Defendant C to see that I would have been able to ask other people to be able to see that I would have been able to see that I would like Defendant C would have been 100.

③ Defendant C also stated in the prosecution that “In giving the above money to Defendant B and A, there was an intention to see the judgment favorable to the J, and even from the standpoint of the trial, it is true that if receiving the money, the judgment would inevitably be favorable to the J.”

Reasons for sentencing

1. The crime of this case committed by the Defendants, who must play an important role in the development of the Republic of Korea as an applicant for common sentencing I’s judgment or the Scong Scong Group’s Scong for the sake of the development of Korea. In light of the Scong’s judgment, the crime of this case committed by the Defendants, which received cash in favor of the team to which they belong, is detrimental to the foundation of the fair proceeding of the game and the fair operation of the corrective team based on this, thereby damaging the foundation of the professional sports that lives as a corrected winner, and at the fair and unreasonable judgment under the fair and unreasonable judgment, has a high possibility of criticism by preventing and hindering the sound development of professional sports.

2. Defendant A and B

Considering the fact that the Defendants received cash from C in response to an illegal solicitation to request a ruling favorable to J throughout several times as the case of I’s life of fairness and integrity, in particular, Defendant B’s receipt of cash as of the day immediately preceding the J Games in which they are in charge of the judgment, etc., the Defendants should be subject to strict punishment.

However, there is no previous conviction except for those fines once or twice imposed on the Defendants, and the Defendants voluntarily surrenders to and punished for the instant crime to the investigative agency, and this court recognizes the crime and repents the wrong facts in depth, as well as the amount of money given and received, and the details and frequency of giving and receiving money, etc. shall be sentenced to the same punishment as the orders.

3. Defendant C.

Considering the fact that the Defendant, as the Skyman of J, provided cash with an illegal solicitation to A and B several times as the Skyman belonging to I, and that the Defendant committed the commission of the commission of the commission of the commission of the commission of the commission of the commission of the commission of the commission of the commission of the commission of the commission of the commission of the commission of the commission of the commission of the commission of the commission of the commission of the commission of the commission of the commission of the commission of the commission of the commission of the commission of the commission of the commission of the commission of the commission of the commission of the commission of the commission of the commission of the commission of

However, the defendant shall be sentenced to the same punishment as the order, considering the fact that he has no previous convictions exceeding the same kind of crime and fine, the amount of money issued, the frequency of delivery, etc.