In a case where a university professor received money and valuables in connection with the doctor’s degree examination of a doctor’s degree thesis and received meal entertainment, the case affirming the establishment of a crime of violation of trust and embezzlement on the grounds that the offer of money and entertainment to a person subject to examination of a thesis can be seen as an implied solicitation on the examination of a thesis and that the acquisition of property and property profits cannot be deemed as unrelated to the examination of a thesis.

In a case where a university professor received money and valuables in connection with the doctor's degree examination of a thesis and received meal entertainment, the case recognized the establishment of a crime of taking property in breach of trust on the ground that the offer of money and valuables and the entertainment of property can be deemed as an implied solicitation for the examination of a thesis, and the acquisition of property and property profits cannot be deemed as unrelated to the solicitation related to the examination of a thesis, in view of the fact that the person subject to the examination of a thesis expresses that money and valuables may be requested several times and that the person subject to the examination of a thesis may be at a disadvantage if he refuses to provide money and valuables and was in a position to exercise significant influence on the examination of a thesis and the degree of academic degree.

Article 357(1) of the Criminal Act

Supreme Court Decision 2003Do4320 Decided May 11, 2006 (Gong2006Sang, 1079) Supreme Court Decision 2008Do9602 Decided December 24, 2008

Defendant

Number of capacity:

Law Firm Newro Law Firm, Attorney Yoon Byung-gu

A defendant shall be punished by imprisonment for six months.

However, the execution of the above punishment shall be suspended for one year from the date this judgment becomes final and conclusive.

1,775,00 won shall be additionally collected from the defendant.

The Defendant, as an assistant professor of the department of education at ○ University, is in charge of the thesis guidance and examination of doctoral degree course at ○ University graduate school.

1. On August 2006, the Defendant, as a guide professor of Non-Indicted 1’s doctor’s degree course, directed Non-Indicted 1’s doctor’s degree thesis, and received five galian department gift certificates 100,000 won from Non-Indicted 1, on the 29th day of the same month, upon receiving an unjust solicitation from Non-Indicted 1, who had caused the burden on Non-Indicted 1, that “in connection with the examination of this paper, the Defendant would be able to make preparations to use the monthly salary,” and “whether or not he will use it as a part of the monthly salary,” and “neither money would be paid nor there is any money.”

2. On November 2006, the Defendant received KRW 1,500,000 in cash from Nonindicted Party 1’s office in ○ University located in Seo-gu Daejeon-gu, Daejeon-gu, Daejeon-gu, with an illegal solicitation to the effect that “The Defendant would give the examiners with money in advance as a gift, which would go through the next thesis,” and that Nonindicted Party 1 would go through the first thesis. At around 19:00 on November 28, 2006, the Defendant received KRW 1,50,000 in cash from Nonindicted Party 1’s office at ○○ University located in Seo-gu, Daejeon-gu, Daejeon-gu, Daejeon-gu, Seoul-gu, Seoul-gu, with the intention that “In this case, it would come well to view” at KRW 275,700,00 in exchange for unjust solicitation from Nonindicted Party 1.

1. Partial statement of the defendant;

1. Legal statement of Nonindicted 1’s witness

1. The part concerning Non-Indicted 2's statement in the police interrogation protocol against the defendant

1. The prosecutor’s statement concerning Nonindicted 1

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

Article 357 (1) of the Criminal Act (Selection of Imprisonment with Labor)

1. Aggravation for concurrent crimes;

Article 37 (former part of Article 37, Article 38(1)2, and Article 50 of the Criminal Act (Aggravated Punishment on November 28, 2006, the most serious penalty)

1. Suspension of execution;

Article 62 (1) of the Criminal Act (Article 62 (1) of the Criminal Act does not apply to the defendant, and since the amount of money and valuables received by the

1. Ratification;

The latter part of Article 357(3) of the Criminal Act

1. Claims by the defendant and defense counsel;

① It is true that the receipt of money and valuables as above, but upon the examination of Nonindicted Party 1’s thesis, the Defendant did not receive money and valuables from Nonindicted Party 1 in return for illegal solicitation as to his duties and did not receive money and valuables, in light of the fact that the academic achievement of the thesis falls short of the standard and the degree of academic achievement of that thesis was not passed through the thesis, ② Nonindicted Party 1 requested a third party to analyze the thesis, and asked the Defendant’s opinion as to the result of the analysis, and the Defendant responded to the result. In addition, Nonindicted Party 1 received money and valuables in return for the gift certificates at the time of giving and receiving the gift certificates, ③ the receipt of money and valuables and entertainments related to the examination of a doctor’s degree thesis are carried out

On the other hand, even if the defendant did not first demand money and valuables or contact with the non-indicted 1, there is a reason to consider sentencing, since the non-indicted 1 voluntarily provided or provided money and valuables to the defendant.

2. Determination:

In the crime of taking property in breach of trust, illegal solicitation refers to a solicitation that goes against social norms and the principle of trust and good faith, and in determining this, comprehensive consideration of the contents of the solicitation, the amount of assets received in relation thereto, the form, and the integrity of the business administrator, which is the legal interest protected by the law, should be comprehensively considered, and such solicitation does not necessarily require an explicit statement (see Supreme Court Decision 2004Do6646, Jan. 14, 2005).

In full view of Nonindicted Party 1’s statement at the police station and the prosecutor’s office, and Nonindicted Party 2’s written opinion as to whether the Defendant received money or other property benefits upon his request, Nonindicted Party 1 expressed that Nonindicted Party 1 would not be able to use monthly salary for the purpose of demanding money or other valuables from the examination committee. In addition to Nonindicted Party 1’s written opinion, Nonindicted Party 1 would not be able to accept the Defendant’s request from Nonindicted Party 1 for the examination of a doctor’s degree and that Nonindicted Party 2 would not be able to accept the Defendant’s request from Nonindicted Party 1 for the examination on the following grounds: (a) Nonindicted Party 1 would not have been able to accept the Defendant’s request from Nonindicted Party 2 for a certain time; and (b) Nonindicted Party 1 would not have been able to accept the Defendant’s request from Nonindicted Party 2 for the examination of a doctor’s degree and that Nonindicted Party 2 would have been able to receive money or other valuables from the examination committee; and (c) Nonindicted Party 1 would have been able to teach the Defendant.

Furthermore, it cannot be readily concluded that a student who intends to obtain a doctor’s degree pays a meal fee to all the universities of Korea. Furthermore, even if such behavior was conducted in secret, continuous and repeated ways at certain universities, including the educational department of ○○ University, it cannot be a ground to justify the Defendant’s crime. Article 6(1) of the Regulations on the Service of ○○ University Teachers and Staff provides that “school employees shall not receive money or other valuables or entertainment directly or indirectly in relation to their duties.” ○ University is entitled to separate examination fees from its presenters (Article 63(2) of the Regulations on the Management of ○ University School). In light of the purpose and function of the university in our society, the Defendant’s act of receiving money or other valuables from its members on the day of the examination to the extent that it does not violate the principle of trust and good faith, and thus, the Defendant’s act of receiving money and other valuables from its members on the day of the examination cannot be seen as an act of infringement of trust and good faith on the day of its receipt by its members.

Therefore, the defendant and the defense counsel are not accepted.

It cannot be readily concluded that the Defendant pursued only the Defendant’s private interest at the time of committing the instant crime, and it is difficult to conclude that Nonindicted Party 1 did not have the mind to help the Defendant pass a doctor’s degree thesis on a monthly and monthly basis by allowing him to well appear as his examiners. Meanwhile, the amount or contact cost of the money acquired by the Defendant due to the instant crime may not be significant. Furthermore, from the perspective of the Defendant, it may be said that the amount of the money acquired by the Defendant or contact cost was not significant. Furthermore, in light of the fact that the Defendant’s non-performance behavior repeated in the course of the doctor’s degree examination by a university as a early professor, as a professor, led to the remaining crime of this case, it may be said that the Defendant would be at an excessive disadvantage in status compared to some other professors who were not treated or punished in the past.

However, the Defendant, as a professor of the department of education, demanded that the subject of examination of the thesis, who is bound to be in an absolute position in all respects in the relation with the Defendant in the course of the examination of a doctoral degree thesis, provide active and active property and property benefits to the subject of examination. Nevertheless, the Defendant, on the ground that there is a disagreement between the Defendant and Nonindicted 1, who resisted the Defendant’s behavior before and after the crime of this case, and acted contrary to the Defendant’s speech that it is against the Defendant’s character as a human attack, etc., on the ground that there is a difference between the facts recognized. The present society seems to have taken the attitude that it was unaware of the high social status of the leaders of the so-called society, including university professors, and expressed that he was aware of some mistakes, and reached the stage of demanding compliance, morality, conscience, and conscience that are consistent with his reputation and height in the process of examination of degrees, and in the same context, the Defendant’s motive and motive for the crime of this case can no longer be deemed to have been affirmed by all other evidence.

1. Summary of the facts charged

On November 28, 2006, the Defendant received an illegal solicitation from Nonindicted 1 to 330,000 won and acquired profits equivalent to the amount. The Defendant received 330,000 won and received 330,000 won, from the Seo-gu, Seo-gu, Daejeon.

2. Determination:

The prosecutor indicted the total meal cost of 330,00 won on the part of the defendant as property profits. However, in case where the defendant took entertainment together with the entertainment provider and the entertainment provider paid the money, the defendant's profit should be acknowledged as the amount of the defendant's profit by considering the amount of expenses required for entertainment in the defendant's entertainment and the amount of expenses consumed by the entertainment provider. If the amount of expenses required by each person is unclear, it should be equally divided and recognized as the amount of the defendant's profit (see Supreme Court Decision 94Do2687, Jan. 12, 1995, etc.). Thus, since five examiners including the defendant and 330,00 won consumed by the non-indicted 1, a entertainment provider, including the defendant, are excluded from the profits acquired by the defendant's property, the facts charged constitute a single crime of breach of trust under the latter part of Article 325 of the Criminal Procedure Act, and thus, the defendant is not guilty.

Judges Mung-won (Presiding Judge)