Defendant 1 and one other

Defendants and Prosecutor

Kim Jong-sik

Attorney Sung-Gyeong-Gyeong et al.

Seoul Southern District Court Decision 2009Ma749 Decided June 11, 2009

All appeals by the Defendants and the Prosecutor are dismissed.

1. Summary of grounds for appeal;

A. Defendants

(1) misunderstanding of facts or misunderstanding of legal principles: A fact that Defendant 1 received the instant money from Defendant 2; however, Defendant 2 did not acquire the instant money by receiving an illegal solicitation from Defendant 2 to conclude a more contract; nor did Defendant 2 also made an illegal solicitation to the same effect.

【Unjustifiable sentencing: Each sentence of the court below is too heavy.

B. Prosecutor (unfairness) : The lower court’s punishment against the Defendants is too minor.

2. Determination

A. misunderstanding of facts or misapprehension of legal principles by the Defendants

The crime of taking property in breach of trust and the crime of taking property in breach of trust under Article 357 of the Criminal Act are not established unless there is an illegal solicitation between a donor and a purchaser of property or profits. Here, “illegal solicitation” does not necessarily require it to the extent that it does not necessarily constitute the substance of occupational breach of trust, and it is sufficient that it goes against social rules or the principle of good faith. In determining this, the contents of a solicitation and the amount of compensation related thereto, form, and integrity of transactions, which are protected legal interests, should be comprehensively considered, and such solicitation does not necessarily require an explicit solicitation (see, e.g., Supreme Court Decisions 2005Do1732, Jun. 9, 2005; 2008Do6987, Dec. 11, 2008).

In light of the following circumstances that are duly admitted and examined by the court below, Defendant 1 was working from around October 1, 200 at the ○○ Technology Research Institute to take charge of traffic volume survey equipment maintenance, equipment supply, construction order, and inspection after construction, and at the time of obtaining approval by the above Defendant, the terms and conditions of the contract and the supply price are actually determined. Defendant 2 imported equipment for traffic volume survey from France to deliver it to the ○○ Technology Research Institute. Defendant 2 did not want to provide the above funds to Defendant 1 for a total amount of KRW 154,80,000 for 14 times from June 1, 2005 to December 9, 2008. However, Defendant 1 did not want to provide the above funds to the ○○ Technology Research Institute with a total of KRW 200,000 to KRW 30,000,000,000,000 to KRW 14,000,000,000,000.

B. The defendants and the prosecutor's allegation of unfair sentencing

Although the Defendants denied each of the facts charged in the instant case, even though they were fully recognized as seen earlier, they did not reflect the crime, and in light of the amount of money received, Defendant 1 is an initial crime; Defendant 2 is only punished once for drunk driving; Defendant 1 retired from the ○○ Technology Research Institute due to the instant case; Defendant 1 wishes to have the Defendant’s prior domicile at the ○○ Technology Research Institute; Defendant 1 fully repaid the instant money to Nonindicted Co., Ltd. 1, which is operated by Defendant 2; and all of the sentencing conditions indicated in the pleadings in the instant case, including the Defendants’ age, character and conduct, home environment, motive and circumstance leading to the instant crime; and circumstances before and after the instant crime, it is not recognized that each of the punishments imposed by the lower court against the Defendants is too heavy or too unreasonable.

3. Conclusion

Therefore, the Defendants and the Prosecutor’s appeal is without merit, and all of them are dismissed under Article 364(4) of the Criminal Procedure Act (However, since the facts constituting the crime of the lower judgment are obvious that the “Non-Indicted 1 Stock Company” and “Non-Indicted 1 Stock Company” in the 14th sentence are errors of the “Non-Indicted 1 Stock Company,” it is so decided as per Disposition by its own authority.

Judges Lee Byung-hee (Presiding Judge) (Presiding Justice)