Defendant 1 shall be punished by imprisonment with prison labor for not less than five years and by a fine not exceeding 150,000,000 won, and by imprisonment for not more than five years and a fine not exceeding 40,000,000 won.

In the event that Defendant 1 and Defendant 3 (Defendant 2) did not pay each of the above fines, the above Defendants shall be confined to Defendant 1; KRW 500,000 for Defendant 3 (Defendant 2) and KRW 250,000 for Defendant 3 (Defendant 2) for each one day.

The collection of KRW 150,00,000 from Defendant 1, and KRW 180,000 from Defendant 3 (Large-board: Defendant 2) shall be made respectively.

To order Defendant 1 and Defendant 3 (Defendant 2) to pay an amount equivalent to the above fines and additional charges, respectively.

Defendant 2’s appeal is dismissed.

A. Defendant 1

(1) misunderstanding of facts

A) Defendant 1 is merely an audit, which is a non-standing executive officer of the ○○○ apartment reconstruction association, and the selection of the removal company is merely the business of △△ Construction, a contractor, and is not the business of Defendant 1, and there is no relevance to duties.

B) On December 5, 2011, Defendant 1 received KRW 30 million from Nonindicted Co. 2 (hereinafter “Nonindicted Co. 2”) via Defendant 2, who received KRW 50 million from Nonindicted Co. 3, the head of the headquarters of Nonindicted Co. 2’s business (hereinafter “Nonindicted Co. 2”) in order to deliver the amount of KRW 50 million to three directors, including Nonindicted Co. 4, etc. according to Nonindicted Co. 1’s order. In fact, Defendant 1 delivered KRW 23 million out of the amount to Nonindicted Co. 4, etc., Defendant 1 did not have the intention of acquisition with respect to KRW 30 million or KRW 23 million.

2) Unreasonable sentencing

The punishment sentenced by the court below against Defendant 1 (the imprisonment of three years and six months and the fine of 50 million won) is too unreasonable.

B. Defendant 2

The punishment sentenced by the court below against Defendant 2 (one year of imprisonment) is too unreasonable.

(c) Defendant 3 (Defendant 2)

(1) misunderstanding of facts

The selection of the Si Corporation is only the affairs of the Do○ apartment reconstruction association, but it is not the duties of Defendant 3 (Counter-board: Defendant 2), which is merely the directors of the association, and it is not the duties of Defendant 3 (Counter-board: Defendant 2). In return for the selection of Defendant 3 (Counter-board: Defendant 2), the head of the business of the headquarters in the area south-nam Construction of △△△△, as it does not receive KRW 180 million from Defendant 2, who is the head of the business of the headquarters in the area south-nam Construction, and it is not reasonable to view that Defendant

2) Legal principles

A) The Act was newly established on February 1, 2012 to prohibit an act of offering, receiving, etc. money, valuables, or property benefits in relation to the selection of a contractor, etc. of a rearrangement project, and punish a violation thereof. As such, the said provision was newly established to resolve the imbalance of punishment due to the application of the bribe-related provisions to the executives, etc. of a rearrangement project cooperative, etc., pursuant to Article 1(2) of the Criminal Act, the said provision ought to be applied to Defendant 3 (Defendant 2) pursuant to Articles 84-2 and 11(5) of the Act on Urban Improvement of New Corporations, for which punishment is minor.

B) Although the amount of the accepted bribery, which is the basis of a fine that may be imposed concurrently on Defendant 3 (Defendant 2) pursuant to Article 2(2) of the Aggravated Punishment Act, is limited to KRW 30 million, which is received in the Habman on March 3, 2009, after the enforcement date of the above provision, the lower court’s calculation based on the total amount of KRW 180,000,000,000, is illegal and unjust.

3) Unreasonable sentencing

The punishment (five years of imprisonment and fine of 180 million won) sentenced by the court below against the defendant 3 (the defendant 2) is too unreasonable.

D. Prosecutor (Defendant 1)

(1) misunderstanding of facts

Defendant 1’s statement is reliable, and according to Defendant 1’s statement, etc., it is recognized that Defendant 1 and the head of the cooperative conspired with Nonindicted 1 to select Nonindicted Company 2 as a removal company of ○○○ apartment reconstruction project, and received a bribe after being issued KRW 100 million from Nonindicted 3 to Nonindicted 2’s head of the business headquarters.

2) Unreasonable sentencing

The sentence imposed by the court below against Defendant 1 is too unhued and unfair.

2. Determination on the part on Defendant 1

A. Judgment on the mistake of facts by Defendant 1

1) Determination on the assertion that no duty relationship exists

A) In the crime of bribery, the term “duty” includes not only a public official’s duty under the legal control, but also a public official’s act closely related to his/her duty, or a person who may assist or affect the person having authority to decide on whether a public official’s duty and benefit constitutes “Bribery” as an unfair benefit in exchange for a public official’s duty. In light of the fact that the crime of bribery is the legal interest protected by the law as well as the process of performing his/her duty, social trust and the uncertainty of his/her duty, it is the standard for determining whether a public official’s benefit is suspected of being fair in performing his/her duty from the general public (see, e.g., Supreme Court Decision 2010Do17797, Mar. 24, 2011). Such legal principle also applies to an officer and employee deemed a public official under Article 84 of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents.

B) Examining the following circumstances based on the evidence duly adopted and examined by the lower court and the lower court in light of the aforementioned legal doctrine, the lower court’s judgment is justifiable in that it sufficiently recognizes that Defendant 1 received a bribe in relation to his/her duties as an auditor of the ○○○ apartment reconstruction association. Accordingly, this part of the lower court’s judgment is without merit.

Defendant 1 was appointed as the auditor of ○○ apartment reconstruction association around May 29, 2010, and thereafter the overall tasks of the association, including the designation of Nonindicted Party 1 and the recommending entity for removal works, have been carried out.

In the event that construction works for the reconstruction project enter into a contract with the demolition company, if the partnership recommends the demolition company, it is general to enter into a contract with the demolition company recommended by the partnership unless there are any special circumstances. In the case of the reconstruction project of ○○○ apartment as well as the construction project of △△△ as the Si project was a situation in which the partnership should enter into a contract with the demolition company recommended by the association, and according to the prosecutor's statement

In the event that it is difficult for Nonindicted Co. 2 to make an order for the removal of Nonindicted Co. 3 to take place, Defendant 2 asked Defendant 1 to introduce Defendant 1. During that process, Nonindicted Co. 5, who is an employee of Nonindicted Co. 2’s business, verified that Defendant 1 could actually have an influence on the selection of the removal company, and then Defendant 1 paid money in return for the selection of the removal company.

○ 철거업체 선정과 관련하여 조합장 공소외 1은 ☆☆☆☆☆를, 피고인 1은 공소외 2 회사와 ▽▽기업을 추천하려고 하였고, 피고인 1이 ☆☆☆☆☆의 실적 부족을 지적하는 바람에 결국 공소외 2 회사와 ▽▽기업이 철거업체로 추천되었다. 시공사 △△건설은 추천업체 중 ▽▽기업과 도급계약을 체결하려고 하였으나, 피고인 1이 △△건설에 공소외 2 회사와 ▽▽기업이 공동으로 철거공사를 수주하는 방안을 제시하였고, 그에 따라 공소외 2 회사와 ▽▽기업이 7:3의 비율로 철거공사를 공동으로 수주하게 되었다.

Defendant 1, at the time of the second and third investigation by the prosecution, was selected as a Si △△ Construction, and was selected as a Si △△ Construction through Defendant 2 through introduction of Nonindicted Co. 3, the head of the business headquarters of Nonindicted Co. 2, through Defendant 2, and was paid KRW 150 million over two occasions (excluding Defendant 2’s share) in return for the designation of Nonindicted Co. 2 as the removal company. As above, Defendant 1 stated in detail the reasons why Nonindicted Co. 2 received money from Nonindicted Co. 3 and received some of the removal work from Nonindicted Co. 3 so that he could receive some of the removal work. In order to select Nonindicted Co. 2 as the removal company at the court of the original trial, the lower court stated that the KRW 150 million out of the above KRW 150 million, in collusion with Nonindicted Co. 1’s head of the partnership and received the remainder KRW 50 million solely.

○ Nonindicted 3, at the time of the prosecutor’s investigation and at the trial of the lower court and at the trial of the lower court, delivered to Defendant 1 KRW 150 million (except for Defendant 2’s share of KRW 50 million) in order to be selected as the removal company, made a concrete and consistent statement on the process. Defendant 2 also made a consistent statement at the prosecutor’s office’s investigation and the court of the lower court’s trial to the same effect.

2) Determination as to the assertion that there was no intention to obtain benefits

A) The acceptance of a bribe refers to the acceptance of money and valuables with the intention of acquiring it. As such, if it is recognized that there was no intention of acquiring it, such as accepting it, but without knowing that it is a bribe, returning it immediately after being aware that it is a bribe, or returning it is unilaterally made by the mineer, and thus, temporarily keeping it at once with the intention of returning it in view of the future opportunity, it may not be deemed that the acceptance of a bribe was made. However, if the defendant demanded a bribe first and received the money provided by the mineer, it cannot be said that the defendant has the intention of acquiring the entire amount received (see, e.g., Supreme Court Decision 2013Do151, Feb. 27, 2014).

B) In light of the above legal principles in light of the following circumstances acknowledged by the lower court and the first instance court’s evidence duly admitted and examined, the lower court’s determination on this part is justifiable, and there is no ground to believe that Defendant 1 received KRW 50 million from Nonindicted 3 on December 5, 201 with the intention to obtain the above evidence, as well as the fact that Defendant 1 received KRW 50 million from Nonindicted 3 on December 5, 201. Therefore, this part of the lower court’s determination is without merit.

Defendant 1 asserted that, on December 5, 2011, Defendant 1 first delivered part of them to Nonindicted 4, etc. under the direction of Nonindicted 1, the president of the cooperative, with respect to KRW 50 million received from Nonindicted 3 on the 8th trial day of the lower trial. However, from the prosecutor’s investigation to the 7th trial day of the lower court, Defendant 1 did not make any such statement or assertion at all. Defendant 1 asserted that he made the said statement to the prosecutor at the time of the prosecutor’s investigation, but there is no evidence to acknowledge it. If Defendant 1 made the said statement to the prosecutor at the time of the prosecutor’s investigation, the prosecutor did not enter it in the interrogation protocol, etc., without any reason.

○○ Nonindicted 1 stated in the lower court’s court that there was no evidence to acknowledge Defendant 1’s assertion that part of the above KRW 50 million was delivered to Nonindicted 4, etc., and Nonindicted 4 stated at the trial court that there was no fact that Defendant 1 did not receive money from Defendant 1, and there was no other evidence to acknowledge Defendant 1’s assertion.

At the time of investigation conducted by the prosecution and the court below, Defendant 2 stated that “Defendant 1 tried to directly set the amount of bribe by proposing the total amount of the removal construction cost to meet Nonindicted 3 and Defendant 2, and claiming 10% of them, and Defendant 1 told Defendant 3 not to give money when he urged to pay KRW 50 million among the KRW 200 million agreed by Nonindicted 3.”

As long as it can be deemed that Defendant 1 had an intention to obtain KRW 50 million received from Nonindicted 3 on December 5, 2011, Defendant 1, as alleged by Defendant 1, gave part of the facts to Nonindicted 4, etc., even if Defendant 1, as alleged by Defendant 1, does not affect the establishment of the crime of bribery with respect to the whole amount of KRW 50 million (see, e.g., Supreme Court Decisions 83Do3218, Feb. 14, 1984; 96Do865, Jun. 14, 1996; 2005Do5785, Dec. 9, 2005).

B. Judgment on the prosecutor's assertion of mistake

1) Relevant legal principles

Inasmuch as the recognition of facts constituting an offense in a criminal trial ought to be based on strict evidence with probative value that leads a judge to have no reasonable doubt, if the prosecutor’s proof of guilt does not sufficiently reach such a level, the determination ought to be based on the interests of the accused even if there is doubt of guilt. Meanwhile, in a case where the issue is whether to accept money or valuables, the defendant, who was identified as the recipient of money or valuables, denies the fact of receiving money or valuables, and there is no objective evidence, such as financial data to support such determination, should have admissibility of evidence, as well as credibility excluding reasonable doubt. Determination of credibility should be based on 104 times, including the rationality of the statement itself, objective reasonableness, and consistency before and after the statement, and in particular, there is an interest relationship between him and her, and there is a possibility that an investigation is initiated or investigation is conducted, 2014 times and 2014 times of confessions made by the Supreme Court, 2014 Supreme Court decisions should also be examined as to what extent it does not affect the admissibility of evidence of the statement (see Supreme Court Decision 201417Do14.

2) The judgment of the court below

원심은, 피고인 1이 2011. 10. 7.경 공소외 3으로부터 공소외 2 회사를 철거업체로 선정해주는 명목으로 현금 1억 원을 교부받은 사실은 인정되나, 적법하게 채택·조사한 증거들에 의하여 인정되는 다음의 각 사정, 즉 ① 피고인 1은 이 부분 공소사실과 관련하여 검찰 조사를 받으면서 매번 진술이 바뀌었고, 그 변화폭도 매우 커서 그 진술의 신빙성에 의심이 드는 점, ② 피고인 1의 입장에서는 자신의 뇌물수수 혐의 중 일부를 조합장인 공소외 1에게 전가하거나 공소외 1을 공범으로 끌어들이기 위해 공소외 1에게 불리한 거짓 진술을 하였을 가능성과 동기가 충분히 있는 점, ③ 그 밖에 달리 피고인 1이 진술을 번복할 만한 합리적이고 납득할 만한 동기나 이유가 전혀 드러나 있지 않고, 오히려 거짓 진술을 강구할 만한 충분한 시간적 여유가 있었던 점, ④ 피고인 1이 공소외 1의 ‘하수인’ 내지 ‘심부름꾼’과 같은 역할을 하였던 것으로 보이지 않는 점, ⑤ 공소외 3과 피고인 2는 철거공사 수주를 위한 청탁의 대상으로 애초부터 피고인 1만을 염두에 두고 있었고, 수주 대가를 협상하는 과정에서도 조합장인 공소외 1에 관한 말은 전혀 나오지 않았던 점, ⑥ 피고인 1은 공소외 3으로부터 1억 5,000만 원을 건네받으면서 공소외 3의 요구대로 자신을 차용인으로 기재하고 서명한 차용증을 공소외 3에게 작성해주었던 점, ⑦ 공소외 1에게 1억 원을 전달하였다는 피고인 1의 진술에는 실제 경험하였던 일을 진술하고 있다는 믿음을 줄 정도의 특징적인 정보가 포함되어 있지 않고, 상시로 사람들이 드나드는 커피숍을 뇌물의 전달 장소로 골랐다는 것도 납득하기 어려워, 피고인 1이 공소외 1에게 1억 원을 실제로 전달하였는지에 관하여 합리적인 의심을 배제하기 어려운 점, ⑧ 피고인 1은 공소외 3, 피고인 2에게 ‘자신이 철거공사를 수주하도록 해줄 수 있는 힘이 있다’, ‘돈을 주지 않을 경우 철거공사를 수주해주지 않겠다’는 말을 한 바 있고, 공소외 3과 피고인 2를 만나 ☆☆☆☆☆나 ▽▽기업과의 철거공사 물량 배분 방법, 철거공사비 총액 및 뇌물의 전체적 액수(공사비 총액의 10%)까지 구체적으로 제안하고 정하려고 하는 등 1억 원의 사용자가 피고인 1임을 짐작케 하는 사정이 있는 점 등을 종합하여 보면, ‘피고인 1이 공소외 1과 금품을 받기로 공모한 점’, ‘피고인 1이 2011. 11.경 공소외 1에게 공소외 3으로부터 받은 1억 원을 교부한 점’에 대하여 합리적 의심을 배제할 만한 증명이 이루어졌다고 보기 어렵다는 이유로 이 부분 공소사실을 무죄로 판단하였다.

3) Determination of the immediate deliberation

According to the evidence duly adopted and examined by the court below and the court below, we fully accept all the above statements of the court below. If we look at the following circumstances acknowledged by the above evidence, it is hard to see that there was a proof to exclude a reasonable doubt as to "the defendant 1 conspired to receive non-indicted 1 and money," and "the defendant 1 delivered KRW 100 million to non-indicted 1 on November 201," and there is no other evidence to support this otherwise, the court below's determination that this part of the facts charged constituted a case where there is no evidence to prove a crime is justifiable. Accordingly, the prosecutor's argument of mistake of facts is without merit.

A) The credibility of Defendant 1’s statement

Defendant 1’s statement was the only evidence supporting this part of the facts charged at the time of investigation by the prosecution and at the court of the original instance and the court of the original instance. In light of the following circumstances, Defendant 1’s statement is difficult to believe it as it is.

○○○○○○ apartment reconstruction project, upon being examined by the prosecution, Nonindicted 3 and Defendant 2 stated to the effect that “ Nonindicted 3 delivered KRW 200 million to Defendant 1 to the auditor of the cooperative, in return for receiving orders for removal works from Nonindicted Company 2 in relation to the project of reconstruction of Busan○○○ apartment,” and thereafter, Nonindicted 3 was arrested by the prosecution on three occasions from June 2, 2015 to August of the same month, and the investigation was conducted on one occasion as a witness on the 17th of the same month. In the process, Defendant 1 reversed his own statement on several occasions as follows.

On June 2, 2015, Defendant 1 made a statement to the effect that “At the time of interrogation of a suspect by the prosecution, Nonindicted 3 was met with Defendant 2 at the seat of Defendant 2, and that Defendant 2 loaned KRW 150 million to Nonindicted 3 at that seat. Nonindicted 3 demanded a loan certificate to Defendant 2, but, upon Defendant 2’s request, Nonindicted 3 prepared a loan certificate to Nonindicted 3 on behalf of Defendant 3.” However, unlike the previous statement, Defendant 1 received KRW 100 million from the prosecutor’s office at the time of interrogation of the suspect (the replacement examination with Nonindicted 3 was conducted), Defendant 1 received KRW 200 million from Nonindicted 3, 2000,000,0000,000 from the rest of Nonindicted 2,50,000 won, excluding Nonindicted 3, 200,000 won, and Defendant 1 received KRW 500,500,000,000 from the prosecutor’s office.”

On the other hand, Defendant 1 was investigated as witness on June 17, 2015 with respect to the case of violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (Bribery) against Nonindicted Party 1. Defendant 1, for the first time, stated that “Nonindicted Party 1 would receive KRW 100 million from Nonindicted Company 2 in return for the selection of the removal construction company, and instructed Nonindicted Party 2 to contact with Nonindicted Party 3 by giving instructions to meet with Nonindicted Party 3, and 10 million out of the total amount of KRW 200 million received from Nonindicted Party 3, which was first received from Nonindicted Party 3, was given to Nonindicted Party 1.”

In addition, Defendant 1 stated in the court below that “it was urged several times from Non-Indicted 1 to bring 100 million won, but did not bring money to Defendant 2 for one month or two months without knowing that Non-Indicted 1 received money from Non-Indicted 3.” As to the reason for such behavior, Defendant 1 stated that “Non-Indicted 1 would not interfere with a third party in the process of receiving a bribe, so he could not speak the fact that he received money through Defendant 2.” However, in the statement of grounds of appeal prepared by Defendant 1 directly, Defendant 1 asked Non-Indicted 1 as to whether the head of the cooperative (which received KRW 150,000 from Non-Indicted 3) would be well-issued with Non-Indicted 2, and Defendant 1 received money from Non-Indicted 2, 30,000 won from Non-Indicted 1, and made it necessary to keep the money at one’s own bar, and then, Defendant 2 and Non-Indicted 1 made a statement to Defendant 2.

From the standpoint of Defendant 1, there is sufficient possibility that part of the charges of bribery may be imposed on Nonindicted 1, the president of the association, or Nonindicted 1, by bringing them into the co-offenders, to the effect that he would be subject to punishment, and that Defendant 1 made a statement to the effect that he would be disadvantageous to Nonindicted 1, and otherwise, Defendant 1 does not have any reasonable and reasonable motive or reason to reverse his statement. Furthermore, considering that there was a difference of time for nine days between the three-time interrogations recognized the entire charges of bribery and the investigation by the witness who stated that Defendant 1 delivered the bribe to him according to the direction of Nonindicted 1, Defendant 1 had sufficient time to devise a false statement.

At the time of interrogation of Nonindicted Party 1, Defendant 1, as seen earlier, stated to the effect that “Defendant 2 used the remainder of KRW 100 million, excluding KRW 50 million, which was removed from Defendant 2’s share, out of the amount of KRW 150 million received from Nonindicted Party 3,” Defendant 1 does not appear to be a person under Nonindicted Party 1’s control or a person faithful to Nonindicted Party 1 to the extent that he was able to make a false statement in order for Defendant 1 to capture Nonindicted Party 1.

Defendant 1, who received KRW 150 million from Nonindicted 3 first, prepared a certificate of borrowing in his own name and delivered it to Nonindicted 3. As to the process of the preparation of such certificate of borrowing, Nonindicted 3, in the prosecutor’s office, stated, “I will receive the certificate of borrowing at the time of giving the order of removal according to the practices of the removal industry. I have to left the grounds for giving the money, and then would recover the money if it would not be paid later.” To this end, I will prepare a certificate of borrowing, and the due date or reason is not written.” Accordingly, if Defendant 1’s assertion is merely a delivery book and delivered KRW 100 million to Nonindicted 1,00,000,000 to Nonindicted 2, it is difficult to obtain and pay the certificate of borrowing KRW 150,000,000,000 in its own name, if the Nonindicted Company 2 did not receive the order of removal.

B) Each statement by Nonindicted 3 and Defendant 2 related to the receipt of money

At the time of prosecutor’s investigation, Non-Indicted 3 stated to the effect that “Non-Indicted 2, in relation to the reconstruction project, should be ordered to take the removal work, but the construction company was unable to take the price due to the change from the modern industrial development to the △△ Construction. He heard from Defendant 2, who was known to the general public, that Defendant 1 was difficult to reach an association by the auditor of the association, and Defendant 1 met with Defendant 2, and Defendant 2. Defendant 1 demanded the removal work order price and gave KRW 200 million to Defendant 1.”

○ 공소외 3은 원심 법정에서 위와 같은 취지의 진술에 더하여 ‘기존에는 조합장 공소외 1과 친밀하게 지냈는데, 조합이 ☆☆☆☆☆로부터 돈을 차입한 시점 무렵 공소외 1이 공소외 2 회사를 안 좋게 생각하면서 냉대하기 시작했다. 피고인 2로부터 피고인 1이 조합에서 영향력이 상당하다는 말을 듣고 공소외 2 회사 직원인 공소외 5에게 조사를 지시하여 피고인 1이 조합장 등에 대하여 영향력이 상당하다는 것을 확인하였다. 피고인 1이 조합장은 자기가 알아서 하겠다며 신경쓰지 말라고 했다. 당시 조합장 공소외 1에게 나누어 준다는 얘기는 없었다’는 취지로 진술하였다.

○ 공소외 3은 당심 법정에서도 ‘조합장 공소외 1이 ☆☆☆☆☆로부터 조합 운영비를 대여받는 등 도움을 받으면서 ☆☆☆☆☆를 철거업체로 밀고 있다는 소문이 있어 공소외 1을 찾아가 항의를 하고 다툰 적이 있다. 공소외 1의 공소외 2 회사에 대한 신뢰도가 떨어져, 감사인 피고인 1을 통해 공소외 1 및 조합 집행부가 공소외 2 회사에 대해 좋은 이미지를 가지게 하여 공소외 2 회사가 철거공사를 수주하기 위해 피고인 2의 소개로 피고인 1을 만나게 되었다. 피고인 1이 받은 돈을 조합장이나 다른 임원들에게 전달한다는 말은 듣지 못하였다’는 취지의 진술을 하였다.

○ 또한 공소외 3은 검찰 조사 당시 및 원심 법정에서 ‘피고인 1이 조합장인 공소외 1이 철거공사 업체선정과 관련하여 ☆☆☆☆☆로부터 2억 원을 받았다는 비리를 자신이 알고 있어서 조합장은 피고인 1에게 꼼짝 못한다고 말했다’는 취지로 진술하였고, 피고인 1에게 돈을 주기 전후로 한 번도 공소외 1에 대한 전달 여부 등을 확인하거나 공소외 1의 반응을 물어보지 않았다.

On the other hand, at the time of the prosecutorial investigation and at the court of the court below, Defendant 2 introduced Defendant 1 to Nonindicted 3, because Nonindicted 3, who had a big influence on the partnership, she was placed in order to take advantage of the cooperative’s influence. At the time, Defendant 1 had a significant influence on the auditor at the cooperative, and Defendant 1 said, Defendant 1 said that Defendant 1 was able to think of the amount as 10% of the construction amount after the interview with Nonindicted 3. Defendant 1 stated to the effect that Defendant 1 did not call for the delivery of part of the purchase price to Nonindicted 1. In addition, during the prosecutorial investigation, Defendant 2 stated in the prosecutorial investigation that “I would like to say that Defendant 1 would have consumed KRW 100,000,00,000 to whom he would have consumed KRW 10,000.”

According to each of the above statements by Nonindicted 3 and Defendant 2, Nonindicted 3 only took into account only the Defendant 1 from the beginning on the subject of solicitation for the order of the removal work. Nonindicted 1 did not think of the subject matter of solicitation. As alleged by Defendant 1, it does not appear that Defendant 1 merely was replaced with the heart of Nonindicted 1 or a bribe delivery agent. Therefore, it is difficult to believe that Defendant 1’s statement that Defendant 1 delivered KRW 100 million out of the money received from Nonindicted 3 as it is to Nonindicted 1 is.

○ also stated that Defendant 1 received KRW 150 million from Nonindicted 3 and distributed it to Defendant 2, while Defendant 1 stated that “Defendant 2 received KRW 150 million from Defendant 2 as well as KRW 150,000,000,000,000,000,000 which was paid in return for receipt of orders; and that Defendant 2 would have received KRW 300,000 from Defendant 2 as well as KRW 50,000,000,000,000 from Defendant 1, unlike Defendant 1’s statement, Defendant 2 demanded KRW 50,000,000 from Defendant 1 without objection; Defendant 1 stated to the effect that Defendant 1’s custody of money that Defendant 1 received in return for receipt of orders; Defendant 1’s share of KRW 50,000,000,000,000,000 and Defendant 1 made a statement to the effect that it was difficult to challenge Defendant 1500,0,0.

C) As to Defendant 1’s prosecutorial investigation, etc.

Although Defendant 1 made a statement that he sent KRW 100 million to Nonindicted 1 at the time of interrogation of the second suspect, Defendant 1 argued that such statement was omitted in the second suspect examination by the prosecution, but there is no evidence to acknowledge it.

Since Nonindicted 1, the president of the ○○ association, is deemed to have higher location than Defendant 1, and Nonindicted 1’s crime of bribery is very closely related to Defendant 1’s crime of bribery, and Defendant 1’s statement that Defendant 1 delivered KRW 100 million to Nonindicted 1 is an important evidence to prove the guilt of Nonindicted 1, it would be consistent with the common sense that if the prosecutor made a statement that Defendant 1 delivered money to Nonindicted 1, if the prosecutor would have made a statement that he sent money from Defendant 1 to Nonindicted 1, he would rather be in order to secure to the maximum extent possible the statement about Nonindicted 1’s crime by asking additional questions. Therefore, it is difficult to understand that such statement was not entered in the suspect examination even if it was made.

In addition, Defendant 1’s statement change process at the time of investigation by the prosecutor, namely, Defendant 1’s interrogation protocol on June 3, 2015 on Defendant 2, the Prosecutor’s interrogation protocol on Defendant 1, stating that “I would like to make a statement anywhere in the next investigation.” On June 8, 2015, the Prosecutor’s interrogation protocol on Defendant 1, stating that “I would have to make a statement anywhere in the next investigation.” On June 3, 2015, the Prosecutor’s interrogation protocol on Defendant 3, stating that “I would have used any place where KRW 100 million is required to be used.” In light of the fact, it does not appear that Defendant 1’s statement that Defendant 1 sent money to Nonindicted 1 at the time of the second interrogation of suspect, but it did not appear to have been omitted in such interrogation protocol.

C. Judgment ex officio (whether the defendant 1's sole criminal conduct is recognized)

1) The judgment of the court below

According to the statements made by Defendant 1, Nonindicted 3, and Defendant 2 at the investigative agency and the court of original trial, and the statements made by Defendant 1 on October 7, 2011, the lower court determined that Defendant 1 received KRW 100 million in cash from Nonindicted 3 on or around October 7, 2011, although it is recognized that Defendant 1 received a bribe of KRW 100 million in cash from Nonindicted 3, “the receipt of a bribe of KRW 100 million in cash by himself,” and “the receipt of a bribe of KRW 100 million in cash after Defendant 1 conspired with Nonindicted 1 and delivered it to Nonindicted 1” are not identical to the facts charged, and it is difficult to view that it is difficult to view that Defendant 1’s act constitutes a minor criminal offense, which is included in the facts charged for the prosecution, and that there is no possibility of actual disadvantage to Defendant 1’s exercise of his right to defense, as long as it does not modify the indictment, the lower court held that Defendant 1’s sole receipt of a bribe of KRW 13100 million.

2) Determination of the immediate deliberation

In cases where the court recognizes that a person prosecuted as a co-principal committed the same crime as a single criminal, and thus, it cannot be deemed necessary to amend a bill of indictment in cases where it does not have any substantial disadvantage to the defendant's exercise of his/her right of defense because he/she would be able to exercise his/her right of defense (see, e.g., Supreme Court Decisions 2006Do3583, Sept. 6, 2007; 2013Do112, Nov. 28, 2013; 2013Do5752, Oct. 24, 2013).

As the court below and the court below acknowledged the following facts, since the evidence legitimately adopted and examined the bribe and the records of this case, it is recognized that Defendant 1 was delivered cash KRW 100 million to Nonindicted Co. 2 as the removal company around October 7, 201, the prosecutor initially delivered KRW 100 million to Nonindicted Co. 3 on October 7, 201, and on December 5, 201, Nonindicted Co. 3 received cash KRW 50 million from Defendant 2 on the day of the court below’s trial without considering the following facts: “On the other hand, Nonindicted Co. 1 was indicted for a bribe of KRW 150,000,000,000,000,000,000,000,000 won, which was delivered to Defendant 1 on the sole basis of the facts charged, the court below acknowledged that there was no possibility that Defendant 1 would have received a bribe of KRW 100,000,00,000,00,000.

Therefore, among the judgment below, there is an error of law by misunderstanding the legal principles as above, which affected the conclusion of the judgment, and the crime of violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (Bribery) due to the bribery of KRW 100 million and the crime of violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (Bribery) due to the bribery of KRW 50 million in the judgment of the court below should be sentenced to one punishment in the relation of a single crime

3. Determination on the grounds of appeal by Defendant 2

Defendant 2’s recognition of the instant crime and reflects on the instant crime, Defendant 2 is the primary offender who has no criminal record, and Defendant 2’s chronic hemopic disease and urine disease, and health conditions are not good, etc. are favorable to Defendant 2.

However, Defendant 2’s crime of this case is that: (a) received money as a intermediary for the selection of the removal company in relation to the reconstruction of ○○○ apartment; (b) delivered a bribe in return for the selection of the removal company; and (c) delivered a bribe under the name of the designation of the removal company as a contractor for the reconstruction project of △△ apartment in relation to the reconstruction of △△ apartment in △△△; (d) the nature and method of the crime was defective; (e) Defendant 2 received money in return for mediating the selection of the removal company of the reconstruction project was KRW 50 million; and (e) the amount of bribe delivered or offered is KRW 230 million; and (e) Defendant 2’s crime of this case seriously damaged the fairness and transparency of the reconstruction project; (e) social trust and the purchase of duties due to each of the crimes of this case.

When comprehensively considering the above circumstances and the following circumstances, Defendant 2’s age, character and conduct, environment, motive, means and consequence of the crime, all of the sentencing conditions shown in the arguments, including the circumstances after the crime, and the scope of the sentencing guidelines set by the Supreme Court, compared to the first instance court, where there is no change in the sentencing conditions, and where the first instance court’s sentencing does not deviate from the reasonable scope of discretion, it is reasonable to respect them (see Supreme Court en banc Decision 2015Do3260, Jul. 23, 2015).

Therefore, Defendant 2’s assertion of unreasonable sentencing is without merit.

4. Determination on the grounds of appeal by Defendant 3 (Counter-board: Defendant 2)

A. Judgment on the assertion of mistake of facts

According to the following circumstances acknowledged by the evidence duly adopted and examined by the court below, it is reasonable to find that Defendant 3 (Defendant 2) was a director of the △ apartment reconstruction association in △△△△△, and that he received a bribe in return for the selection of △△ Construction as a contractor in connection with his duties. Therefore, this part of the judgment of the court below is justified. Accordingly, Defendant 3 (Defendant 2)’s assertion of mistake of facts is without merit.

around April 15, 2008, Defendant 3 (Counter-board: Defendant 2) has been taking office as a director of the △△ apartment reconstruction association and has been performing the overall duties of the association.

At the time of prosecutorial investigation, Defendant 2 stated that “Defendant 3 (Defendant 2: Defendant 2) confirmed that he had a strong influence in the △△ apartment reconstruction association in △△△△△, and asked Defendant 3 (Defendant 2: Defendant 2) to select Defendant 3 as the trial contractor. Defendant 3 (Defendant 2: Defendant 2) changed KRW 200 million, which would enable △△△ Construction to be selected as the trial contractor. After being selected as the trial contractor, Defendant 2 delivered KRW 180,000 to Defendant 3 (Defendant 2: Defendant 2) in return for this.” However, Defendant 2 did not seem to have any special reason to make a false statement even when he was at risk of being subject to criminal punishment.

○○ KRW 180,00,000 delivered by Defendant 2 to Defendant 3 (Defendant 2) was prepared by means of paying the price in installments to the cooperative company of △△ Construction and receiving return after paying it. However, if △△ Construction did not have been selected as the contractor of the reconstruction project, Defendant 2 prepared a large amount of cash in the above unlawful manner, and delivered it to Defendant 3 (Defendant 2). The reason seems to be that there was no reason for Defendant 2 to issue it to Defendant 3 (Defendant 2).

○○ Defendant 3 (Counter-board: Defendant 2) also stated at the time of the prosecutor’s investigation to the effect that “The council of representatives of the cooperative provides that △△ Construction will take place more than any other contractor than the other contractor,” and △△ Construction was selected as the contractor and received money from Defendant 2 in return for it, and the lower court also acknowledged all the facts charged.

B. Judgment on misapprehension of legal principles

1) Determination as to the assertion that Article 84-2 and Article 11(5) of the Act should be applied

A) The provisions of Article 1(2) of the Criminal Act apply to the case where the evaluation of the past acts committed as a crime was changed due to the change of the legal ideology which served as the reason for the enactment of penal laws and regulations, and the recognition and punishment of them as a crime was unfair, or where the law was amended or amended in light of the reflective view that the punishment was excessive (see, e.g., Supreme Court Decision 97Do2682, Dec. 9, 197).

The term “Article 129(1) of the Criminal Act,” “Article 2(1) of the Aggravated Punishment Act,” “Article 84 of the Aggravated Punishment Act,” which is a legal provision applicable to Defendant 3 (Defendant 2), “Article 129(1) of the Aggravated Punishment Act,” “Article 84 of the Aggravated Punishment Act,” and “Article 84 of the Aggravated Punishment Act,” which is the date of the instant crime, was amended or repealed from October 2008 to March 1, 2009, which is the date of the instant crime, to the present. As the Urban Improvement Act was partially amended by Act No. 11293 on February 1, 2012, Article 84-2 subparag. 1 and Article 11(5) of the Aggravated Punishment Act have not been amended or repealed, and there is still no separate statutory provision as a separate provision, respectively.

Therefore, as asserted by Defendant 3 (Defendant 2), the newly established contents of Articles 84-2 subparag. 1 and 11(5) of the Urban Improvement Act cannot be deemed as constituting “where the act does not constitute a crime due to a change of law after the crime, or the punishment is more severe than that of the former Act” in accordance with Article 1(2) of the Criminal Act.

B) In addition, considering the comparison between “Article 129(1) of the Criminal Act”, “Article 2(1) of the Aggravated Punishment Act”, “Article 84 of the Aggravated Punishment Act” and “Article 84-2 subparag. 1 and Article 11(5) of the Aggravated Punishment Act, the legislative purpose, protected legal interest, scope of punishment, etc. are different as follows. Although some of the elements of each of the above crimes overlap, even if the facts constituting the above crimes overlap, there is room for the commercial concurrent crimes to be established within such scope. Thus, as alleged by Defendant 3 (Defendant 2), Articles 84-2 subparag. 1 and 11(5) of the Aggravated Punishment Act shall be applied, and the application of “Special Aggravated Punishment Act” and Article 84-2 subparag. 1 and Article 84 of the Aggravated Improvement Act shall not be deemed unlawful.

○ The crime of acceptance of bribe under Article 129(1) of the Criminal Act provides that the process of performance of duties, trust in the society, and the non-purchase of the act of performance of duties shall be protected by the law, and there is no need to make a special solicitation in recognizing the bribe of the received money and valuables, and there is no need to make a special solicitation in relation to the acceptance of the money and valuables as receiving the money and valuables in relation to their duties, and there is no need to specify the act of performance of duties (Supreme Court Decision 99Do4940 delivered on January 21, 200).

○ In addition, Article 2(1) of the Special Cases and Article 2(1) of the Act provides for a phased aggravated punishment based on the amount of the bribery in that the amount of the bribery increases more than the amount of the bribery. Article 84 of the Urban Improvement Act provides that a public official who is an officer of a partnership may leave the public office to the extent that the public official performs his/her urban maintenance function requires high level of integrity and the purchase of business affairs, and thus, the officer is deemed a public official and subject to strict punishment (see Constitutional Court Decision 2013HunBa20, 272, Feb. 26, 2015).

On the other hand, Article 84-2 subparag. 1 and Article 11(5) of the Urban Improvement Act punishs “the act of offering or receiving money or goods, etc. in connection with the selection of a contractor, etc.,” and does not limit the subject of punishment to “public officials” or “executives of a partnership for maintenance and improvement as deemed public officials, etc.,” and as a punishment provision which imposes punishment for providing or receiving money or goods, etc. in relation to “the selection of a contractor, etc.,” it is merely a legal interest that protects fairness and integrity in the specific work of “the selection of a contractor, etc.,” and it is difficult to view that the legal interest protected by the law is the fairness in the performance of duties such as an officer of a partnership for maintenance and improvement, etc., trust in society

C) Therefore, Defendant 3 (Counter-board: Defendant 2)’s assertion of misapprehension of the legal principles on this part is without merit.

2) Determination as to the assertion that only KRW 30 million should be imposed concurrently on the police officer on March 2009.

Article 2(2) of the Aggravated Punishment Act amended and enforced by Act No. 9169 of Dec. 26, 2008 provides, “Any person who commits a crime provided for in Article 129, 130 or 132 of the Criminal Act shall be concurrently punished by a fine of not less than two times and not more than five times the amount of the accepted bribery in the punishment prescribed for the crime (including the case of paragraph (1)).” Thus, a fine necessary for the crime against the crime of acceptance of bribe shall be concurrently imposed. In light of Article 13(1) of the Constitution of the Republic of Korea and Article 1(1) of the Criminal Act, “In the event the crime of acceptance of bribe, which is a single comprehensive crime, was committed over the period before and after the enforcement of the said new provision, the amount of a fine prescribed in Article 2(2) of the Aggravated Punishment Act shall be limited to the amount of the accepted bribe, which is the basis for calculating the amount of the accepted bribe (see, e.g., Supreme Court Decision 2016Do161.

In light of the above legal principles, the amount of the bribery, which is the basis for the imposition of a fine under Article 2(2) of the Aggravated Punishment Act among the amount of the bribe that Defendant 3 (Defendant 2) received from Defendant 2, shall be limited to KRW 30 million,00,000,000,000,000,000,000,000,000 won (= KRW 30,000,000 x 5 times). Thus, the court below erred by misapprehending the legal principles on the concurrent imposition of a fine under Article 2(2) of the Aggravated Punishment Act, which affected the conclusion of the judgment.

Therefore, the argument of the misapprehension of legal principles in this part by Defendant 3 (Defendant 2) is with merit.

5. Conclusion

Therefore, Defendant 2’s appeal is dismissed pursuant to Article 364(4) of the Criminal Procedure Act on the ground that there is no ground for ex officio reversal as seen earlier among the judgment of the court below on Defendant 1, and there is part of the appeal filed by Defendant 3 (Counter-board: Defendant 2). As such, the judgment on the allegation of unfair sentencing on Defendant 1 and Defendant 3 (Counter-board: Defendant 2) and the prosecutor’s appeal on Defendant 1 is omitted, and the judgment on the argument of unfair sentencing on Defendant 1 is reversed in the judgment of the court below pursuant to Article 364(2) and (6) of the Criminal Procedure Act, and is again decided as follows.

1. Defendant 1

On October 7, 2011, the Defendant received KRW 100 million in cash from Nonindicted 3 in the name of selecting Nonindicted Company 2 as a removal company for the ○○○ apartment reconstruction project within the dedicated site located in Changwon-si, Changwon-si, Changwon-si, Busan. On December 5, 201, the Defendant received KRW 50 million in cash provided by Nonindicted 3 to Defendant 2 under the same name as the same.

Accordingly, the defendant, who is deemed as a public official, received a bribe of KRW 150 million in cash from Nonindicted 3 in relation to his duties under the pretext of the selection of the removal company.

Article 2 (1) 1 of the Act on the Aggravated Punishment, etc. of Specific Crimes, Article 129 (1) of the Criminal Act, and Article 84 of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents [In combination, the punishment of imprisonment shall be selected in a limited term, and the punishment of fines shall be imposed concurrently pursuant to Article 2 (2) of the Act on the Aggravated Punishment, etc. of Specific Crimes: Provided, That the upper limit of imprisonment with prison labor for Defendant 3 (Change: Defendant 2 shall be governed by the main sentence of Article 42 of the former Criminal Act (amended by Act No.

1. Discretionary mitigation;

Articles 53, 55(1)3, and 6 of each Criminal Code (The following circumstances considered in favor of the reasons for sentencing):

1. Detention in a workhouse;

Articles 70(1) and 69(2) of the Criminal Act

1. Additional collection:

The latter part of Article 134 of the Criminal Code

1. Order of provisional payment;

Article 334(1) of the Criminal Procedure Act

(a) Scope of punishment by law: Imprisonment with prison labor for up to 5 years, for a fine of up to 150 million won, for a fine of up to 375 million won;

(b) Scope of recommendations based on the sentencing criteria;

[Determination of Punishment] Type 5 of Bribery (10 million won or more, and less than 500 million won)

[Special Aggravationd Persons] Aggravationd : Posium

[Recommendation and Scope of Recommendation] Aggravation, 9 years to 12 years of imprisonment

(c) Determination of sentence;

Defendant 1’s crime of this case is a situation unfavorable to Defendant 1 for the following reasons: (a) Defendant 1’s demand and acceptance of bribe in return for the selection of the removal company by taking advantage of the status that may affect the selection of the subcontractor as an auditor of the reconstruction association; (b) the nature of the crime and method of the crime are very poor; (c) Defendant 1’s bribe received is large of KRW 150 million; (d) Defendant 1 attempted to transfer his responsibility to Nonindicted 1, etc., the head of the association; and (e) Defendant 1’s crime of this case seriously damaged the integrity, fairness, and trust of the officers of the reconstruction association due to Defendant 1’s instant crime.

However, the fact that Defendant 1 received KRW 150 million from the removal company itself is recognized, and that Defendant 1 is in a position deemed as a public official of the reconstruction association and it is difficult to view the degree of occupational integrity required for Defendant 1 to the same extent as that of a professional public official performing official duties, and that Defendant 1 has no record of punishment or a fine exceeding the same kind of crime is favorable to Defendant 1.

In addition to the above circumstances and the following circumstances, Defendant 1’s age, character and conduct, environment, motive, means and consequence of the crime, all the sentencing conditions shown in the arguments, such as the circumstances after the crime, and the scope of recommended sentencing guidelines for the establishment of the Sentencing Commission shall be determined as per the order.

2. Defendant 3 (Defendant 2)

(a) Scope of applicable sentences under law: Imprisonment for a period between five years and seven years, and a fine of 30 million won to 75 million won;

(b) Scope of recommendations based on the sentencing criteria;

[Determination of Punishment] Type 5 of Bribery (10 million won or more, and less than 500 million won)

[Recommendation and Scope of Recommendations] Basic Field, 7 years of imprisonment to 10 years

[Scope of recommendations as modified by applicable law] Imprisonment with prison labor for 7 years to 7 years

(c) Determination of sentence;

The crime of this case committed by Defendant 3 (Counter-board: Defendant 2) is a director of a reconstruction association who received a bribe in return for the selection of a construction project, and its nature is very poor, and the bribe received by Defendant 3 (Defendant 2) is large as KRW 180 million, and Defendant 3 (Defendant 2: Defendant 2) significantly damaged the integrity, fairness, and trust of the duties of the officers of a reconstruction association due to the crime of this case by Defendant 3 (Defendant 2).

However, Defendant 3 (Counter-board: Defendant 2) is recognized as a substitute for one’s own crime and against it; Defendant 3 (Counter-board: Defendant 2) is in a position to be regarded as a public official of a reconstruction association; the degree of integrity in the duties required of Defendant 3 (Counter-board: Defendant 2) is the same as that of a professional public official performing official duties; Defendant 3 (Counter-board: Defendant 2) is a primary offender who has no record of criminal punishment; etc. is favorable to Defendant 3 (Counter-board: Defendant 2).

In addition, considering the above circumstances and the age, character and conduct, environment, motive, means and consequence of the crime, all the conditions of sentencing as shown in the arguments, such as the circumstances after the crime, and the scope of recommended sentencing guidelines for the enactment of the Sentencing Committee of the Supreme Court, the punishment as shown in the Disposition shall be determined.

Judges Lee Jong-dae (Presiding Judge)

(1) The grounds for appeal shall be determined within the scope of supplement in case of a statement of reasons for appeal filed with the attempts to file the appellate brief. Defendant 1 asserted that: (a) Article 84 of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (hereinafter “Urban Improvement Act”) and Article 2(1)2 of the Act on the Aggravated Punishment, etc. of Specific Crimes (hereinafter “Special Crimes Act”) are unconstitutional in violation of the principle of excessive prohibition; (b) Article 129(1) of the Criminal Act or Article 84-2 subparag. 1 and Article 11(5) of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (hereinafter “Special Cases Act”); and (c) Article 129(1) of the Act on the Aggravated Punishment, etc. of Specific Crimes and Article 15 of the Act on the Aggravated Punishment, etc. of Urban Areas and Dwelling Conditions for Residents, which are not applicable in case where the executives, etc. of a rearrangement project association receive money and valuables in relation to the selection of work executor, etc.; (d Defendant 2)

주2) ◈ 법률상 처단형의 범위: 징역 1월 ~ 7년 6월 ◈ 양형기준상 권고형의 범위 ○ 제3자뇌물취득죄, 뇌물공여죄 [유형의 결정] 뇌물범죄> 뇌물공여> 제4유형(1억 원 이상) [권고영역 및 권고형의 범위] 기본영역, 징역 2년 6월 ~ 3년 6월 ○ 변호사법위반죄 [유형의 결정] 변호사법위반범죄> 청탁·알선 명목 금품수수> 제3유형(5,000만 원 이상, 1억 원 미만) [권고영역 및 권고형의 범위] 기본영역, 징역 1년 ~ 2년 6월 ○ 다수범죄 처리기준의 적용: 징역 2년 6월 ~ 4년 9월(= 3년 6월 ＋ 2년 6월 × 1/2)

Note 3) Supreme Court Decision 2015Do14071 Decided November 12, 2015 (Seoul High Court Decision 2015No173 Decided August 27, 2015)