68, 821 Judgment (each combination)

The summary of this decision shall be published.

A. misunderstanding of facts and misapprehension of legal principles

AX Apartment 506 Dong 1204 (hereinafter “the apartment of this case”) located in Kimpo-si, Kimpo-si. Since the time when the defendant leased the apartment of this case to D without compensation is around March 201, the defendant completed the act of providing property benefits. D was not a public official at the time, and he was appointed to the president of the AE Tourism Corporation who is deemed a public official on July 18, 201. Even if the defendant, at the request of D around July 2011, prepared and delivered the lease contract for the apartment of this case formally, the free lease doctor cannot be deemed to have been renewed as the crime of offering a bribe. The defendant's establishment of the crime of offering a bribe constitutes a mistake of facts and a misunderstanding of legal principles.

B. Unreasonable sentencing

The punishment of the lower court (fine 10 million won) is too unreasonable.

2. Ex officio determination

The prosecutor changed the existing crime of acceptance of bribe to the primary charge and reduced the amount of the bribe to KRW 27,883,561 as follows. The prosecutor added the crime of giving of the crime of the crime of the crime of the crime of the crime of the crime of the crime of the crime of the crime of the crime of the crime of the crime of the crime of the crime of the crime of the crime of the crime of the crime of the crime of the crime of the crime of the crime of the crime of the crime of the crime of the crime of the crime of the crime of the crime of the crime of the crime of the crime of the crime

However, despite the above reasons for ex officio reversal, the defendant's assertion of misunderstanding of facts and misapprehension of legal principles as to the changed primary facts is still subject to the judgment of this court, and this is examined.

3. Judgment on the defendant's assertion of mistake of facts and misapprehension of legal principles (Judgment on the principal facts charged)

A. Summary of the primary facts charged

With respect to a public-private partnership AJ development project (one name AK project; hereinafter referred to as the "project in this case"), which is promoted by a private business entity on a lease of 5.1 million square meters from AEdo (hereinafter referred to as "AEdo"), the Defendant is a constructor who has promoted the acquisition in the dymna and casino experience sector within the first district model complex from December 2010 to December 19, 201, and D is commissioned as a member of AE private investment inducement committee from December 20, 2008 to December 19, 2012, and has been in charge of deliberation on various affairs related to the inducement of private investment conducted by the Do Governor in relation to investment enterprises, such as the scale and method of support for the investment enterprises, etc., and other affairs related to the inducement of private investment conducted by AEdo, including the general public corporation and the general public corporation from July 18, 201 to December 20, 2012.

Around January 201, the Defendant agreed to provide D through A, an investment attraction advisory officer of AEdo, with the instant apartment in the form of free lease for the following reasons: (a) around March 2011, the Defendant agreed to provide D with the purpose that D will continue to assist and help D successful the instant apartment in the form of a private investment inducement committee; and (b) around May 201, D occupied AY by moving into the instant apartment in the form of the instant apartment.

When D was appointed as the president of the AE Tourism Corporation on July 18, 2011, the Defendant issued a false lease contract with D around July 201 as if it leased the instant apartment to KRW 200 million as the lease deposit, provided that the instant apartment was continuously offered as the president of the AE Tourism Corporation in order to ensure the success of the instant apartment through attracting tourists, and provided AY without compensation from April 30, 2014 to April 30, 201. Accordingly, the Defendant provided D, the president of the AE Tourism Corporation, with the benefit of KRW 27,83,561 in relation to the instant apartment’s duties from July 18, 201 to April 30, 2014.

The lower court determined that the Defendant offered D a bribe equivalent to the rent of the instant apartment from July 18, 2011 to April 30, 2014, when AY moved out of the instant apartment, on the grounds that the Defendant was aware that D had continued to provide the instant apartment without compensation even after D had taken office as the president of AE Tourism Corporation, and that the criminal intent of the crime of giving property in breach of trust can be deemed to have been renewed as a criminal intent for acceptance of bribe and grant of gift, etc.

C. The judgment of this Court

1) Relevant legal principles

In a case where a person who was used in delivery of goods borrowed without compensation becomes a public official, the purport of the offering of the said goods is to lend the said goods to the person who became a public official with the knowledge of the fact that he/she became a public official, and even if the said goods are in a state where he/she can continue to use the said goods, if there are no circumstances to evaluate that he/she provided new benefits, such as additional extension of the period of use as determined at the time of the first lending without compensation, it is merely merely that the previous profits already provided are to be offered as a bribe and it does not constitute the crime of offering of the said goods,

See the judgment of remand)

(ii) the facts of recognition

The following facts are acknowledged according to the evidence duly adopted and examined by the court below and the court below prior to remand.

A) On March 201, C around March 201, 201, AE also considers that the Defendant, a member of the private capital inducement committee, failed to create a house for his children. However, the Defendant provided D with an apartment remaining in the factory space among the newly built apartments in a construction company operated by the Defendant until the apartment is sold in lots.

B) The Defendant accepted the proposal above, and around April 201, the apartment house was leased to D without compensation under the condition that it should be returned at any time when it was sold, and accordingly, D’s children moved into the apartment house of this case around May 201.

C) After that, May 31, 201, the recruitment notice of the President of the AE Tourism Corporation was made, and D subscribed to it and was appointed as the President of the AE Tourism Corporation who is deemed a public official on July 18, 2011.

D) Meanwhile, around July 201, D around July 201, it is necessary for the public official to register the property of the Defendant, and as a result, D requested the Defendant to prepare a charter contract on the instant apartment in a formal manner, and the Defendant sent the instant charter contract to the Defendant. The said charter contract was prepared in a formal manner, and the Defendant did not first lend the instant apartment to the Defendant for a specific period, unlike the time when the Defendant first lent it.

E) At the investigative agency, D also stated that the apartment was sold at any time when entering the apartment of this case, and that it did not change its contents even after the receipt of the lease contract.

3) Determination

According to the above facts of recognition, even if the defendant prepared a formal lease contract around July 201 and caused D's children to continue to reside in the apartment of this case without compensation, this continues to be used by the defendant as a result of a free lease of the apartment to D from April 201 until the apartment of this case was sold to D, and it cannot be deemed that it was an additional or new benefit. Thus, it cannot be deemed that the crime of offering a bribe is established in accordance with the above legal principles.

Therefore, the defendant's assertion of mistake and misapprehension of legal principles is justified.

4. Conclusion

Therefore, the appeal by the defendant is well-grounded, and the decision of the court below is without examining the defendant's assertion of unfair sentencing. Thus, the decision of the court below is entirely reversed pursuant to Article 364 (2) and (6) of the Criminal Procedure Act, and it is again decided as follows.

【Discretionary Judgment】

1. Judgment on the primary facts charged

The summary of the primary facts charged is like the third-party(A), but there is no proof of crime for the same reason as the third-party(C).

2. Judgment on the ancillary charges added at the trial

A. Summary of the conjunctive charge

Around March 1, 2011, the Defendant promised to provide D with free lease for the purpose that the instant apartment complex may be reviewed in good direction in the process of deliberation by the Private Investment Inducement Committee, such as allowing D to be successful in the instant project, so that D’s residents can live in the instant apartment complex. Accordingly, D’s own AY around May 201 and allowed D to move into the instant apartment complex and reside in it free of charge from around April 30, 2014. Accordingly, the Defendant provided D, a member of the Private Investment Inducement Committee, a member of the instant private investment inducement committee, with unlawful solicitation, benefits equivalent to the sum of rent 29,16,666 won of the instant apartment complex from around June 1, 2011 to April 30, 2014 (the summary of the facts charged are stated in the facts charged).

B. Whether Amendments to Bill of Indictment are lawful

1) Defendant’s assertion

The criminal facts of the initial crime of the offering of a bribe and the criminal facts of the offering of a bribe additionally added by the prosecutor after applying for changes in the indictment cannot be seen as identical facts because the existence of a public official status, the timing of the commission of a crime, the timing of solicitation, the contents of solicitation, and the protected legal interests and the nature of the crime are completely different. Thus, the modification of indictment adding the crime of the offering of

2) Determination

Article 298(1) of the Criminal Procedure Act provides that "the prosecutor may, with the permission of the court, withdraw or modify charges or applicable provisions of Acts stated in the indictment. In this case, the court shall permit the application for changes of indictment to the extent not impairing the identity of the facts charged." Thus, if the application for changes of indictment by the prosecutor is within the scope of the identity of the facts charged, the court shall permit it. The identity of the facts charged, which is the basis of the facts, is the same in the basic point of view. In determining the identity of these basic facts, the defendant's act and social factual relations shall be based in mind with the function of the identity of the facts, and normative elements shall also be taken into account (see, e.g., Supreme Court en banc Decision 93Do2080, Mar. 22, 1994; Supreme Court Decision 2012Do14097, Sept. 12, 2013).

According to the records, the facts charged prior to the amendment (limited to the facts charged prior to the amendment) provided the defendant, who is the president of the AE Tourism Corporation, who is deemed a public official from July 18, 2011 to April 30, 2014, with the benefit of KRW 27,883,561 in total of the rent of the apartment of this case in connection with his/her duties. The ancillary facts added by the prosecutor following the amendment of the indictment, which the defendant made an illegal solicitation to D, who is a private capital inducement member, from June 1, 201 to April 30, 2014, provided the benefit of KRW 29,16,666 in total of rent of the apartment of this case from July 1, 201 to April 30, 2014.

① The primary facts charged and the ancillary facts charged are as follows: (a) the Defendant promised to provide the instant apartment to D free of charge on April 201 and the children of D moved into the instant apartment on or around May 30, 201; and (b) there is only a difference in legal evaluation by distinguishing the lease term provided by the Defendant based on D’s identity with respect to the same factual basis that D left on or around April 30, 2014; and (c) as seen in Article 3-3(c) of the above, the act after July 2011 continues to have been conducted on or around April 2011; (b) it is a normative or legal relation with one another; and (c) it is reasonable to view that the crime of breach of trust is the primary purpose of protecting fairness and sincerity in handling affairs of others; and (d) it is reasonable to view that the benefit and protection interest is the integrity of transactions; and (d) it is equivalent to the crime of offering a bribe to A, which corresponds to the crime of offering a bribe by the president.

Therefore, this part of the defendant's argument is without merit.

C. Whether the crime of giving property in breach of trust is established

[Summary: The summary of the decision to provide the lease of this case is that no situation exists or may be deemed to have been after the completion of specific solicitation with regard to the activities of the Private Investment Promotion Committee to which the defendant belongs, and even if the progress of the provision of the lease was done, it does not directly contact between D and the defendant, but it can be seen that the defendant, who became aware of the situation of D's house in the process of personal dialogue and its dissemination between multiple persons in a relationship with D and them, has been naturally conducted in a multi-purpose manner that solves the problem of management expenses of the apartment of this case in which the defendant was in an unsatched situation, and that the act of providing the lease of this case can be seen as naturally conducted at the level of cutting down the subparagraphs of the defendant who was a professor in the region and a presatise who were designated as a professor in the region and the presatise of development. In full view of all the circumstances, the act of providing the lease of this case does not simply act as a member of the Private Investment Promotion Committee, and it does not constitute a crime of

1) Relevant legal principles

The crime of taking property or property in breach of trust is established when acquiring property or property benefits in exchange for an illegal solicitation in relation to a duty, and the crime of taking property or property is not established unless there is an illegal solicitation between a donor of property or profits and a purchaser of property or profits. The "illegal solicitation" in this context does not necessarily require it to the extent that it constitutes the substance of occupational breach of trust, and it is sufficient if it is contrary to social rules or the principle of good faith. In determining it, the contents of the solicitation and the amount of the consideration related thereto, forms, and the integrity of transactions, which are protected legal interests, should be comprehensively considered, and there is no need to express the solicitation (see Supreme Court Decisions 2010Do7380, Sep. 9, 2010; 2010Do1784, Feb. 24, 2011).

(ii) the facts of recognition

The following facts are acknowledged according to the evidence duly adopted and examined by the court below and the court below prior to remand.

A) Status of D

D as a professor of the FP University Tourism Industry Department from December 20, 2008 to December 19, 2012, AE is commissioned as a member of the Private Investment Inducement Committee, and has deliberated on various support, including matters concerning the promotion plan for the inducement of the private investment of AE Island, the scale and method of support for investment enterprises, etc., and other matters related to the inducement of private investment, which are submitted by the Governor, and conducted by AE in relation to the inducement of private investment.

B) Outline of the instant project and Defendant’s participation in the project

(1) On October 18, 2010, upon being commissioned by AE Do Governor as an investment attraction adviser, A sought the instant project, and submitted the instant project proposal to AEdo by designating AM Co., Ltd. (hereinafter referred to as “AM”) that it actually operates as the proposer on January 21, 201.

(2) A guaranteed the right to operate a model complex project and casino experience center project in the first district among the three entire districts of the instant project and B and C, and, in return, provided the participants of the project with the money in the name of the preparation fund for the project and the part of the shares of the model complex business operation corporation to be established by the participants of the project as the rebates, and divided it into two parts.

(3) On December 28, 2010, the Defendant, who is substantially operating DNA, was introduced with the introduction of B and C, and was promised by A to guarantee the preferential status of investors, and paid KRW 1 billion to A.

(4) On January 8, 2011, the Defendant was introduced with D at the time of delivery of A, B, and C. D, with respect to the instant project, advises on the content of a project proposal, such as development method, stouring, etc., in relation to the instant project, and AE-Do’s guarantee of equity investment guarantee belongs to the said committee comprised of 15 persons, in deliberation by the Private Investment Inducement Committee.

(5) On January 16, 201, the Defendant visited AE Do Governor’s official residence with A, B, and C, and then divided D and B dialogue with D. D related to the instant project. D explained to the purport that, in relation to the instant project, AM advises on the contents of the project proposal and made a statement to the effect that AM’s project proposal was made in advance with scenarios so that it may pass through the deliberation of the Private Investment Inducement Committee.

(6) In addition to KRW 1 billion already paid to A, the Defendant invested an aggregate of KRW 1 billion between January 27, 201 and February 10, 201, by paying KRW 2 billion. In return, on March 30, 2011, the Defendant guaranteed A’s business rights, such as casino experience centers. Accordingly, on March 31, 201, the Defendant established a AUU Co., Ltd. for the purpose of operating the game experience center and its facility operation business, darma experience center, and related facilities.

C) Participation in meetings of the Private Investment Inducement Committee and conclusion of the AE Convention

(1) Upon the submission of the instant project proposal, the competent department AE also requested the KJ to hold a private investment inducement and the private investment inducement committee on January 26, 201 in order to gather opinions on the instant project proposal.

(2) D attended the meeting of the Private Investment Promotion Committee held on February 11, 2011 to refer to the stouring, etc. that led in space as theme, and made a positive deliberation on the instant project. Before the said meeting was held, D et al. prepared questions and answers to be made at the meeting in the form of a stove.

(3) On February 21, 2011, the investment attraction department notified the HJ of the result of the meeting of the Private Investment Inducement Committee. On the same day, AE also held a deliberation by the AE Do Mediation Committee, and entered into an agreement with AM on February 25, 2011.

D) Details of the Defendant’s lease and provision without compensation

C around the end of March 2011, the Defendant was taking into consideration that it was difficult for the Defendant to come up with a house while having been going to work in the future. Around May 201, the Defendant agreed to do so and leased the instant apartment to D without compensation around April 201. D’s children moved out of the instant apartment around May 201, but left the zone around May 2014.

E) Suspension of the instant project

Until December 31, 2011, a special purpose company that implements the instant project was not established, and AE declared that the agreement related to the instant project became null and void on January 6, 2012. AUU stock company held a temporary general meeting on January 19, 2012 and concluded a resolution of dissolution. The Defendant concluded a quasi-loan loan agreement with A with respect to KRW 2 billion paid to A on May 30, 2012.

3) Determination

In full view of the following circumstances acknowledged by the above facts and the above evidence, it is difficult to view that the Defendant provided D free of charge with a vague expectation that D could assist the project of the instant case, and that D provided D with an illegal solicitation and free lease with the intent to continuously assist and help D as a private capital inducement member. The evidence submitted by the prosecutor alone cannot be deemed to have established this part of the facts charged to the extent that there is no reasonable doubt, and there is no other evidence to acknowledge it. Thus, the crime of giving property in breach of trust is not established.

(1) Whether private capital inducement members are active.

Around March 4, 2011, when the provision of free lease was decided, D was in the position of private capital inducement committee members. However, since February 11, 2011, there was no room to conduct deliberation activities as a private-free member because the Private Capital inducement Committee was not held in relation to the instant project.

On February 11, 2011, the Private Investment Inducement Committee was held to gather opinions on the instant proposal, and the date of the next meeting was not determined to further deliberate on the instant proposal. Based on the results of the above meeting, the investment attraction in charge of the meeting of the Private Investment Inducement Committee was notified to the HI, which is the department in charge of the instant project, and the AE concluded an agreement with the AM on February 25, 201, and there was no need for subsequent meetings to gather additional opinions on the instant proposal. The Private Investment Inducement Committee did not have been held in relation to the instant project after the said meeting.

The HJ, the department in charge, was going to examine the authorization and permission related to the instant project. However, the private capital inducement committee did not have the authority to participate in the work with HJ. Furthermore, there were many critical public opinions on the press about the instant project implementation before and after the conclusion of the said agreement, and the process of embodying the instant project, such as the consent of the Do Council, approval of development projects, and public notice, did not proceed.

(2) The decision on the provision of lease without compensation.

D There has been a lack of circumstances about A's residence to Q, who is the seat of A, and the defendant heard the circumstances about D's children from C and decided to provide lease free of charge. In light of these indirect communication methods, it seems that the defendant was not in a situation where the defendant attempted to make specific solicitation with the free lease provision to D.

C Around February 3, 2011, at the lowest of B and D, I heard the words "D's children return to the United States and have been working in the will to go home," and stated that "I would like to see how you will see how you will see the former apartment because there is a pre-sale apartment," and "I would know" from the defendant (However, I deny that C would not speak about D's situation). The defendant also stated in the court that I would like to see how you will live in the convenience of life until apartment is sold, and that I agreed to do so in that place. It conforms with C's statement and statement.

D, the investigative agency knew that Q Q, which goes well with A, was trying to go to a residential problem of A and to go to the Defendant, and stated that A Q, entered the apartment of this case, and consented to the proposal. With respect to the transmission route, A Q transferred from the court to B, and B transferred to C and delivered to C to the Defendant without compensation.

In the process of first introducing and dialogueing D on January 8, 201, the Defendant seems to have seen that AE was a member of the private capital inducement committee on March 4, 201. However, at the time of the decision to provide lease without compensation, D gave advice on the progress of the instant project as a professor of the University Tourism Development Department with considerable knowledge in tourism business, and AE was a member of the private capital inducement committee. The Defendant did not seem to have decided to provide lease without compensation in solicitation of D as a member of the private capital inducement committee, such as written indictment, with the specific recognition that D is a member of the private capital inducement committee.

In addition, the defendant seems to have operated as one motive for consideration that D will assist D in providing lease free of charge to D, but it does not seem to have been thought that D could be able to help by doing any specific act as a private capital inducement member beyond such expectation. In other words, there is no evidence to confirm what the defendant made in relation to D's specific solicitation in relation to the private capital inducement member.

The defendant stated at an investigative agency that "the reason why he provided the apartment of this case to D without compensation is to be involved in the project of this case, and the 2 billion won has already been delivered to A, A is the best side of the Do Governor with respect to D, AE also is a professor of tourism department at AE as tourism development science, AE also has been introduced to the purport that he is a member of AE is a member of the IEson National University, and IE thought it is a person who is helpful to the project of this case when I and D appeared to divide conversations." The defendant presented a record on January 8, 2011 and stated that "it is appropriate to receive a record as a member of the private capital inducement committee at the time of providing the record, but it is not appropriate to do so." The defendant did not think that D' before the decision on rent provision in investigative agency is a member of the Private capital inducement committee, but it is clear that he did not know that he was able to use it as a member of the public prosecutor's office without compensation.

After that, the Defendant made a statement to the same purport at an investigative agency. The Defendant stated that the detailed part of the part that D considered as a person who is helpful to the instant project was detailed, but that D was one of the aspects that D was helpful to the AK project, and that D was aware that D was a tourism expert, and that it was intended to exempt D from the payment of basic management expenses.

The Defendant made a statement to the same purport in the court. The Defendant stated that the Defendant did not refuse the physical face by talking about the same purport. D was 2-3 only in 2-3 times, and considered D was to accurately talk about his own behavior and to make a objectivity in a position. From the standpoint of the company, there was a burden on the households' public room by 70 days due to the Housing Hadne, and that there was a complex reason that he did not come from his father when he was able to take a job because he did not start study abroad, and that he did not have any kind of consideration or what kind of consideration to D.

D made a statement in the investigative agency that "the defendant has a own consciousness between the defendant and the defendant, and it is difficult that D's children have no house in Seoul because it is difficult for D's children to do so, even if the house management expenses for house-to-door sales, which are inside Seoul, and that the house is sold immediately if it is sold, D's name was denied. D' does not think that it is a member of the private capital inducement committee in the court because it is a member of the private capital inducement committee in the court. It is not thought that D's name was a new one because it was a member of the private capital inducement committee in the court. The defendant was unaware of what kind of division was when he was aware of the investment, and it was first known that D's 1 billion won was paid to A at the time of January 8, 2011. It seems that D's member also testified that it was not a compensation for the solicitation related to the duties of inducement of private capital and received rent without compensation.

C was expected to be helpful in the investigative agency as a professional in the development of the AE area. At the close place, C testified that D would be helpful in the project. At the court, I think that D would have a role because IEFP university is a IV university or a professor of the tourist dog course when I introduced 'in the court, I think that D would have a role because I would have been a mere introduction.' I think it would not be possible to give advice.' It was aware that free lease is not related to the AE business. The above statement made by C is consistent with the statements made by the above accused and D.

④ In determining the provision of rent to D without compensation, the provision of rent is not only an economic burden on the defendant, but also an interest that can reduce the burden of management expenses in relation to the management of apartment units. The defendant does not seem to have taken into account the provision of rent without compensation upon solicitation.

The Defendant, at the investigative agency, lent a 'sports' at the time when the company became aware of the sale at the company, and subsequently returned the games, and provided at any time at the time when the company needs to sell them in a public room. The Defendant stated to the effect that the company had been residing in the public room only in the management expenses, and offered a Liny’s shop to sell in lots from the low floor. The same purport is that, at the investigative agency, the Defendant stated to the effect that, at the time of 201, approximately 70 households were unsold among the 560 households as of April 30, 201, and that, at the time of 2012, the Defendant was 15 households as of April 30, 2014, and testified that the present apartment was 13 households as of September 15, 2014, and that the present apartment was 3-4 months public room.

3. Conclusion

If so, there is no proof of a crime, the primary and conjunctive facts charged shall be pronounced not guilty against the defendant under the latter part of Article 325 of the Criminal Procedure Act, and the summary of this judgment shall be announced publicly under the main sentence of Article 58 (

Judges Min Il-young

Judges Hong Man-man