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(영문) 부산고등법원 2017.07.20 2017노76

직권남용권리행사방해등

Text

The judgment below

Of them, the guilty part against Defendant A (including the acquittal part for reasons) shall be reversed.

Defendant

A. Imprisonment.

Reasons

1. Summary of grounds for appeal;

A. Although there was no fact that the Defendant received 6 million won in total from AH over two occasions as stated in each of the facts charged in the judgment below, the court below found the Defendant guilty of each of the facts charged on the grounds as stated in its holding. The court below erred by misapprehending the legal principles or by misapprehending the legal principles, which affected the conclusion of the judgment.

B) The authority to select government-funded materials required for various works ordered by the General Construction Headquarters (hereinafter “H General Construction Headquarters”) in the part of the interference with the exercise of rights by abuse of authority in the holding of the lower judgment is for H General Construction Headquarters and its public officials.

In addition, the designer and its employees who have been requested by the H General Construction Headquarters to provide design services are obligated to reflect government-funded materials selected by H General Construction Headquarters and its employees in the design.

Therefore, the Defendant, who is a public official of H General Construction Headquarters, selected each material listed in the list of crimes No. 1 as government-funded material as indicated in the judgment below, and notified it to the designer of N Co., Ltd. (hereinafter “N”), a designing company, and ordered him to reflect it in the shop design. Accordingly, even if the above X et al. reflected each of the above materials as government-funded material, it cannot be said that the above X et al. interfered with the exercise of rights, such as the above X et al., or that the above X et al. did not perform any duty, or that the above X et al. did not perform any duty. Thus, the lower court found the Defendant guilty of this part of the facts charged on the grounds as stated in its reasoning. In so doing, the lower court erred by misapprehending the facts or by misapprehending the legal doctrine

2) Defendant B paid KRW 24,840,289 out of the total amount of KRW 300,214,686, which was received through 32 times from suppliers as stated in paragraph (3) of the criminal facts stated in the judgment below, as value added.