(영문) 대구고등법원 2010.6.10.선고 2010노144 판결

Defendant Chapter 00 shall be punished by imprisonment with prison labor for a year and six months, and imprisonment with prison labor for a period of ten months.

However, the execution of each of the above punishments shall be suspended for three years from the date the judgment became final and conclusive, and for two years from the date the judgment becomes final and conclusive.

Reasons

1. Summary of grounds for appeal;

(a) Error of mistake or legal benefit (the point of fraud);

The Defendants are correct to deem that they were not in the position of one of the parties as an agent or an authorized person of a foreign player, but in the position of mediating the foreign player to the Gu team. Furthermore, the Defendants’ act of relaying the Defendants to conclude a contract by withdrawing the down payment or benefits of a foreign player and acquiring the difference by deceit shall be deemed to constitute fraud. Therefore, the lower court erred by misapprehending the facts or by misapprehending the legal doctrine.

B. Unreasonable sentencing

The judgment of the court below on the grounds of appeal against mistake of facts or legal benefit

In mediating the entry contract or re-contract between a foreign player and the victim Daegu FC group (hereinafter referred to as the "Gu group"), the defendants should notify the Gu group of the down payment or benefits that a foreign player actually wants. However, the defendants concealed it and deceiving the Gu group to conclude the contract deposit or re-contract by unrefusing the down payment or benefits, and then acquired the difference by deceiving it.

B. Judgment of the court below

The lower court acknowledged the facts as indicated in its reasoning based on its adopted evidence. In light of the various circumstances revealed in its recognition, the lower court determined that Defendant 10 ought to be deemed to have entered into a contract or re-contract between the former team and a foreign player as an agent or an authorized person of a foreign player who is not a broker but delegated the authority to conclude a contract by a foreign player.

Under such premise, the lower court determined that Defendant 10 was not guilty of all the charges on the ground that: (a) Defendant 10 agreed in advance on the amount to be actually paid to the players in advance; and (b) the amount exceeding the contract deposit and monthly salary agreed upon to be paid to the players at the time of concluding the contract with the former team; and (c) even if the excess amount was fully attributed to his own interest, it is only an internal issue between Defendant 10 and the players; (b) Defendant 100, who is required to participate in the negotiation for the benefit of the players as a party to the contract, did not have a duty to inform the players of the amount of the contract deposit, monthly salary, and the amount of the monthly salary that the players agreed to receive in advance between the players; and (c) there is no evidence to deem that the former team assessed the actual amount of the players’s wrong payment due to the down payment or annual salary presented by Defendant 100.

C. The judgment of this Court

1) However, the above fact-finding and determination by the court below are not acceptable for the following reasons.

2) According to the evidence duly adopted and examined by the court below, the old team may find the following facts as follows. (A) Around March 1, 2007, the old team entered into a contract with E-learning players as a substitute player, and entered into a contract with E-learning players on November 1, 2007.

On January 28, 2008, the Gu team entered into a prize contract with Asch Rexroth, but it terminated the contract with Asch Rexroth for lack of skills, etc. and entered into a prize contract with Asch Rexroth as a substitute player on July 28, 2008.

B) Defendant 00 introduced a foreign player, such as Masia, E-learning, Alsch Rexroth, Masia, etc., to the Gu team at the time when the Gu team entered into an entrance contract or re-contract with a foreign player, and, if the Gu team expresses its intent to participate in the contract or re-contract with the foreign player, it had the Gu team enter into the entrance contract or re-contract on behalf of the foreign player on the ground of his own or Kim Tae-tae and Jin-ju, etc., and the Defendant’s Chapter 00, as a partner of the Defendant’s Chapter 00, participated in the foreign player according to his direction.

C) On March 1, 2007, Defendant Category 00 had the old team enter into a contract on behalf of the players on behalf of the former team by setting the salary at USD 20,000 per month. Before that, Defendant 1 already agreed to pay USD 10,00 per month as the E-learning Outline and the salary.

Defendant 1, on November 1, 2007, had the Gu team conclude a re-contract on behalf of the E-learning player at USD 2,60,000, on behalf of the former team. Prior to the fact, Defendant 1, 1, 200, 65% of the E-learning player and the down payment, Defendant 1, and the remainder 45% of the 45% of the e-learning player. (Evidence No. 425, 426 of the evidence record)

On January 1, 2008, Defendant 100 had the Gu team enter into a contract by setting the down payment at USD 320,000 per month on behalf of the players, and USD 20,000 per month. Prior to that, Defendant 1 already agreed to pay USD 10,00 per month on behalf of the players.

On July 28, 2008, Defendant 10 had the Gu team enter into a contract on behalf of the Gaban players by setting the salary at USD 20,000 per month. Prior to that, Defendant 1 already agreed to pay USD 10,000 per month with the Gaban players and the down payment.

D) Although Defendant 00 already agreed to pay a certain contract deposit or salary with a foreign player prior to concluding a contract or recontract on behalf of the foreign player, Defendant 1 did not inform the group of such fact and had the group enter into a contract or re-contract with the foreign player as above with a much more contract deposit or salary than it.

After that, the defendant 00 paid only the amount agreed to be paid to the foreign player from the beginning among the down payment and salary that the foreign player received from the Gu team, and the remainder became one.

E) However, the old group entered into an agency contract with the Defendant 26 March 26, 2007 and the Defendant 100 on the part of the E-learning players. Since E-learning players were replaced by E-learning players, the former group would substitute for E-learning fee of 3,1960,000 won already paid at the time of the agency contract for E-learning players, and did not pay a separate E-learning fee to Defendant 00 (Evidence 125, 126, 621, 622 of the evidence record).

On November 1, 2007, the Gu team concluded an agency contract with Defendant 1 00 regarding the re-contract of the E-learning player, and around that time, paid USD 26,000 to Defendant 10 (Evidence Record 127, 128, 623).

On January 9, 2008, the Gu Group concluded an agency contract with Alsch Rexroth 00 regarding the entry contract of the player, and around that time, paid USD 32,00,000 to the defendant 10 (Evidence No. 136, 135, 137.624 of the evidence record).

On July 25, 2008, the Gu Group entered into an agency contract with Defendant 1 and 00 on behalf of the Mebane player, and since the Mebane player was a substitute player of the Mebane player, the Gu Group did not pay a separate transfer fee to Defendant 10 (Evidence 121, 122, 123, 625 pages of evidence).

F) Before and after entering into an entry contract or re-contract with a foreign player, the former group entered into the agency contract as above with the defendant 100 (Provided, That the title holder of the contract was the defendant 1, 00, Kim Tae-tae, Jin, etc.). The main contents of the contract are as follows: “The defendant 100 is responsible for the situation according to all necessary procedures for entry into and departure from Korea of the foreign player and the registration of the player; the foreign player is determined completely, and the foreign player is legally responsible for all matters related to the foreign player from the time when the contract is concluded to the time when the contract is concluded; and the foreign player is required to be replaced due to the injury or lack of skills of the foreign player, etc., the former group shall be replaced with the corresponding foreign player. In return, the former group shall pay the defendant 100 a fixed amount of fee to be transferred to the defendant 1.

G) On the other hand, the Gu team assessed the skills of a foreign player on its own, and concluded a foreign player entry contract or renewal contract with a foreign player, taking into account the need for entry of the foreign player and the financial situation of the team, but the Gu team had no choice but to depend on the data provided by the defendant 00 prior to the company due to lack of information about the foreign player's wages or skills. Furthermore, the Gu team was merely negotiating the terms of the entry contract or renewal contract, such as down payment or wages, only between the defendant 00 and the defendant 10, and did not undergo direct negotiations with the foreign player.

As a result, the old group concluded a contract or re-contract with a foreign player, knowing that the contract deposit or salary of the foreign player presented by the defendant 100 is the down payment or salary desired by the foreign player.

If tin, the head of the Gu’s Secretariat, did not notify a foreign player of the contract deposit or salary that the Defendants already agreed to pay to the foreign player, and knew that the Defendants would bring about the difference by presenting the difference to the Gu’s team as if the players want contract deposit or salary, he would not conclude the pertinent entry contract or re-contract with the foreign player. The Defendants stated to the effect that “the Gu made it known of such circumstances,” and the Defendants stated to the purport that they would not conclude the entry contract or re-contract. 3) In the process of concluding the entry contract between the Gu’s and the foreign player, the Defendants’ roles in the process, and the payment relationship between the contract deposit or re-contract with the foreigner’s agent before and after entering into the entry contract or re-contract with the foreign player, the agreement or re-contract with the foreign player’s agent would not be deemed to have been concluded for the benefit of the foreign player, and the foreigner’s interest would not have been more than the foreigner’s interest than the contract or re-contract’s payment to the foreigner’s agent.

Furthermore, the broker has a conflict of interest between both parties, and if the contract is concluded by mutual coordination so that a certain contract may arise, the broker is engaged in commercial activities for the purpose of acquiring the commission accordingly. Thus, if the price conditions desired by one party are already determined by the broker, the broker is obligated to inform the other party of the fact so that the contract can be concluded based on the price. As in the case of this case, the defendant 10 did not notify the contract deposit or the salary already agreed to be paid to a foreign player for the purpose of acquiring the difference, and it is much more (for wages: two times the wages agreed internally with the foreign player, and the down payment: 32 times the maximum amount of the agreed down payment is the down payment or salary desired by the foreign player, and it is sufficient to view that the act of presenting it to the former group exceeds the permissible scope in light of the ordinary commercial practices and the good faith principle (see, e.g., Supreme Court Decision 2005Do5386, Sept. 29, 2005).

In addition, the former team evaluated the skills of foreign players by itself, and concluded a contract for entry or re-contract with foreign players taking into account the need for entry of foreign players and the financial situation of the former group. However, the former team did not have any choice to rely on the data provided by the Defendant 00, a transfer agent, due to lack of information about the foreign players’ wages or skills. The former group negotiated the terms of entry or re-contract, such as down payment or wages, only with the Defendant 10, but did not go through the process of directly negotiating with the foreign players. In full view of the fact that the Defendant 200 already agreed to pay the down payment or benefits to be paid with the foreign players inside, and there was a difference between the contract for entry into or re-contract into or re-contract into with the foreign players, the causal link between the said deception and the said contract for entry into or re-contract into or re-contract into is sufficiently recognized.

misunderstanding of interest, thereby adversely affecting the conclusion of the judgment. This part of the judgment below cannot be maintained as it is.

3. Conclusion

Therefore, since the prosecutor's appeal is well-grounded, the judgment of the court below is reversed in accordance with Article 364 (6) of the Criminal Procedure Act (the crime of giving property in breach of trust by Defendant 10 shall be sentenced to a single punishment in relation to the substantive concurrence between the crime of fraud and the crime of giving property in breach of trust by Defendant 10, so the part of the judgment of the court below regarding the crime of giving property in breach of trust by Defendant 1

1. The Defendants’ co-principal

The Defendants, taking advantage of the fact that it is easy for the Defendant to deceive the Defendant’s 10,00 U.S. players to depend on the players’ information, such as the amount of skill and price decision, etc. of the victim’s foreign players such as the Defendant’s entry contract practice, supervision, etc., the Defendant’s 00 was involved in the activities in the domestic professional axis under the conditions under which the Defendant’s 10,000 U.S. salaries were paid monthly salary, and the Defendant’s chip excluded the Defendant’s 10,000 U.S. players from participating in the contract. The Defendant’s chip, upon the direction of the Defendant’s 100, colored the foreign players of the said conditions, had the foreign players enter into a contract with the Defendant’s chip, excluding the actual contract deposit, annual salary, etc. of the relevant players from the

A. Fraud related to entering into a contract for E-learning players

On March 1, 2007, the Defendants conspired to mediate the above contract, and the Defendants were paid the amount of USD 10,00 per month without down payment because the contract was entered into to the E-learning under the contract with the E-learning player. The E-learning player also agreed to act as the E-learning player, and the E-learning player wanted to act as the E-learning player, even though USD 10,00 per month, the E-learning player was 20,000 per month and the amount was paid to the players, and the E-learning player was deceiving the Gu team that the E-learning player wanted to act as the E-learning player, and that the E-learning player was paid to the players in full, and the former team concluded the Young-gu team on the condition that the E-learning player would be paid the wages of USD 20,00 per month.

On April 6, 2007, the Defendants, under the above contract, received USD 80,796 from October 31, 2007 by the same method nine times as shown in attached Table 1, from the time when the Defendants, received USD 19,340,00, excluding USD 10,000,00 of the actual monthly salary of the E-learning player, and acquired USD 80,796 in the same manner as shown in attached Table 1.

B. Fraud related to the re-contract of E-learning athletes

On November 1, 2007, the Defendants arranged a re-contract between E-learning athletes and the Gu teams in the Gu office located in Jung-gu, Daegu-dong 504.

In mediating the above contract, the Defendants conspired to arrange the above contract, and agreed that the down payment desired by the E-learning player was USD 88,010,000, and that amount was paid to the E-learning player as the down payment by the E-learning player, thereby deceiving the Gu team, and the Gu team concluded a re-contract between E-learning player and the down payment of USD 260,00.

On January 15, 2008, the Defendants received the relevant money from the former team to take out USD 163,40,000, excluding the actual down payment of the Elearning players, which was deposited as down payment from the financial account (Tgu Bank, 192- 192- 32 - 001987) in the name of the former team (Tgu Bank, 192- 32- 001987).

The Defendants, around January 1, 2008, had been acting as a broker for an entry contract between the two players and the teams of Brazil's nationality at the Gu office located in Sung-gu, Daegu-dong 504.

In mediating the above contract, the Defendants conspired to receive 10,000 dollars per month of contract amount, 10,000 dollars per annual salary, and the players agreed to act as the group players under the above conditions and concluded the contract entry contract under the condition that the players want to receive 10,000 dollars per payment, 10,000 dollars per salary, 320,000 dollars per old group as contract deposit, 240,000 dollars per annual salary, 240,000 dollars per annual salary, and the above amount would be paid to the players in full to Alsch Rexroth, and the former agreed to pay 320,000 dollars to the players as contract deposit.

On January 22, 2008, the Defendants received USD 29,429,00 from May 23, 2008 by allowing them to withdraw USD 29,429, excluding USD 10,000 from USD 309,429,00 of USD 309,429, which was actually deposited in the financial account (foreign exchange bank, account number 502- 81 - 6799) in the name of the players in the Gu team as down payment under the above contract at the Gu team, and acquired it by fraud from May 23, 2008 by the same method six times as shown in attached Table 2 of the Crimes List 2.

(a) Fraud;

On July 28, 2008, the Defendant, at the Gu office located in Suwon-dong 504, arranged a contract by which the Defendant entered the team as a substitute player of the player, and as a substitute player, entered the team.

The defendant, while mediating the above contract, was able to receive down payment of USD 10,00, USD 10,000, annual salary of USD 10,000 to the Robio players, and the players agreed to act as the Gabio players under the above conditions and concluded the subscription contract on the condition that the Gabio players want to receive down payment of USD 10,000 and USD 10,000 per month of salary. However, the Gabio players wanted to receive down payment of USD 20,00 per month and paid the total amount to the players, and the Gabio under the condition that the Gabio players would pay the 20,000 salaries per month.

On August 25, 2008, the Defendant, at the end of the Gu around August 25, 2008, received USD 36,211 in total on four occasions as shown in the attached Table 3, from the time when he received the relevant money and acquired it through deception, by allowing to withdraw USD 9,246, excluding USD 10,00 of the monthly salary of the actual player, among USD 19,246, which was deposited in the financial account (Tgu Bank, 192- 192 - 32,002347) in the name of Dooba under the said contract, and received USD 36,211 in the same manner as shown in the attached Table 3.

B. Breach of trust

1) 피고인은 2007. 2. 16.경 구단 감독 변$$에게 자신이 중개하는 브라질 출신의 루이지뉴, 아르헨티나 출신의 막시 선수를 구단의 선수로 선발하여 주도록 편의를 보아 주면 사례를 지급하겠다는 부정한 청탁을 하고 심재호 명의의 금융계좌 ( 대구은행 , 자에게 그 임무에 관하여 부정한 청탁을 하고 재물을 공여하였다 . 2 ) 피고인은 2007년 4월 ~ 5월경 대구 동구 신천동 소재 ' 듬 ' 식당에서 변 # 에게 위 1)항과 같은 명목으로 미화 30,000달러를 주어, 타인의 사무를 처리하는 자에게 그 임무에 관하여 부정한 청탁을 하고 재물을 공여하였다 .

3) From March to April 2008, the Defendant made an illegal solicitation to pay the Jeju Dongcheon-dong case in consideration of the convenience of selecting the players as the players of the Gu team and giving US$ 70,000 to the person who administers another’s business by making an illegal solicitation in relation to his/her duties and providing property to the person who administers another’s business.

The summary of the evidence of the facts constituting the crime acknowledged by this Court is nothing more than adding the following contents:

this chapter.

1. The defendants' party arguments and some of the court below's court statements 1. The defendant's main support for witnesses, truth-finding, scambling, and e-learning. The court below's entry into the court below's trial of stone mining materials

1. Each prosecutor's interrogation protocol against the Defendants

1.1. Statement of the police on the need for mining;

1. Reporting on investigation (Attachment, such as a Copy of the foreign exchange transaction contract);

Application of Statutes

1. Relevant Article of the facts of crime and the selection of punishment;

Category 00

Articles 357(2) and (1) of each Criminal Code (the point of giving rise to breach of trust, choice of imprisonment), Articles 347(1) and 30 of each Criminal Code (the point of each fraud, and acts related to contracts of Doban players are not subject to Article 30 of the Criminal Code, and choice of imprisonment is not subject to Article 30 of the Criminal Code)

Article 347(1) of the Criminal Act, Article 30 of the Criminal Act (the point of fraud; the choice of imprisonment)

1. The Defendants among concurrent crimes (the Defendants)

The former part of Article 37, Article 38(1)2, and Article 50 of the Criminal Act (the severe penalty and penalty shall be the concurrent penalty prescribed in the crime of fraud in relation to a contract for entry of players)

1. Suspension of execution (the Defendants)

The Defendants on the grounds of sentencing committed the fraud by means similar to this case as a transfer set of the stable player, and committed the act of fraud in 2005, Defendant 00 won was sentenced to a fine of KRW 5 million, and Defendant 1’s Chapter B was sentenced to a suspended sentence of one year. However, Defendant 1 committed the instant fraud again. Furthermore, Defendant 1 00 up to 120 million, while making an illegal solicitation to a supervisor in relation to the selection of a foreign player, Defendant 200 up to 10 million won. In addition, the injury recovery was performed until the trial. However, the crime of fraud in this case was committed not by deceiving the victim group, but by deceiving Defendant 1 from failing to perform the duty of disclosure as an intermediary for a passive period of four months. Moreover, Defendant 2O violated his wrong act through detention for a four-month period, and Defendant 1’s profit was relatively low to the extent that Defendant 1 took part in the crime.

In addition to this point, the defendants' status and role in the crime of this case, age, character and conduct, intelligence and environment, motive, means and consequence of the crime, circumstances after the crime, the amount of damage, etc. shall be determined by taking into account the various circumstances that form the conditions for sentencing.