Defendant 1 (Defendant 1 in the Supreme Court and the appellate court judgment) and one other

Lee Jong-young (Public Prosecution) and Park Jong-young (Public Trial)

Attorney Im Sung-sung et al.

Defendant 1 shall be punished by imprisonment with prison labor for not less than four years and by a fine not exceeding ten million won, and by imprisonment with prison labor for not more than one year.

When Defendant 1 fails to pay the above fine, Defendant 1 shall be confined in a workhouse for the period calculated by converting KRW 500,000 into one day.

However, for two years from the date this judgment became final and conclusive, the execution of the above sentence against Defendant 2 shall be suspended.

50 million won shall be additionally collected from Defendant 1.

Defendant 1 shall order the provisional payment of an amount equivalent to the above fine.

Defendant 1 is the head of a non-indicted 1 association established pursuant to the Urban Development Act (hereinafter “instant association”), who is represented by the association, has overall control over the affairs of the association, has become the chairperson of the general assembly and the board of directors, and Defendant 2 is the co-representative of the non-indicted 6 construction company (hereinafter “non-indicted 6 company”).

1. Defendant 1

(a) Occupational embezzlement;

1) On June 19, 2008, the Defendant received 5th floor of the Seo-gu, Daejeon (hereinafter address 1 omitted), from the office of Nonindicted Company 6, which is the execution company of sewage treatment plants, the instant association, the five floors of which received the national subsidy, and kept for the victim association the Defendant received 50 million won of promissory note issued in the name of Nonindicted Company 6 for the loan from Defendant 2, stating, “The amount of KRW 300 million in the name of association operation expenses, such as design expenses of KRW 150 million, because the instant association was unable to pay the construction cost due to the failure to pay the construction cost for the foundation construction work.” In addition, the Defendant embezzled the amount of KRW 50 million in the aggregate of the face value of the instant promissory note, which was issued in the name of Nonindicted Company 6 for the loan from Defendant 2, and kept for the victim association. By granting the said promissory note to Nonindicted Party 3 for the personal debt repayment, the Defendant embezzled the said promissory note equivalent to KRW 15 million in the value of the victim association.

2) Article 21 of the Development Regulations, which is the articles of incorporation of the instant association, provides that “The executives of the instant association may pay remuneration required for performing their duties or performing their duties in accordance with the resolution of the board of directors.” In order for the Defendant, who is the president of the said association, to receive remuneration, the articles of association of the said association provide that “the union shall pay the full-time officers in accordance with the separate rules of remuneration determined by the union, and in this case, the remuneration rules shall be approved by the general meeting.” The general meeting of the said union held on January 6, 2008 pursuant to the above articles of association, decided that “the unpaid obligation (payment, etc.) of the union shall be paid by the resolution of the board of directors.” Even under the above articles of association, the Defendant was subject to a resolution of the board of directors to receive remuneration.”

On the other hand, the minutes of the board of directors meeting to the effect that "the head of the cooperative shall pay 3.8 million won per month for the benefit of the cooperative" on July 7, 2006 are merely those prepared by the defendant at will, even though the board of directors was not held, so there was no basis for the defendant to receive the benefit from the cooperative.

On July 20, 2007, the Defendant received at will as the Defendant’s salary, and embezzled KRW 78 million from the time on four occasions until February 24, 2009, in personal debt repayment, etc., in the name of the agricultural cooperative (Account Number 1 omitted) account in the name of the Defendant in the name of the cooperative in charge of the Defendant’s business management, notwithstanding the absence of any grounds for receiving the said benefits, the Defendant, as seen above, transferred KRW 15 million to the agricultural cooperative account in the name of the Defendant’s (Account Number 2 omitted) account in the name of the Defendant’s business management.

B. Acceptance of bribe from Defendant 2

On December 28, 2001, Nonindicted Co. 6 agreed to perform the construction of the foundation equivalent to KRW 5,079,934,00 of the construction amount of the instant association and the construction amount, submitted to the association from April 26, 2002, and performed the construction work at the request of the Defendant, and transferred the remainder of the construction work at the request of Nonindicted Co. 7, and claimed to the association KRW 1,70,000,000 for the construction work as above, but the Defendant suggested to exclude the present supervision company from establishing a third company and suggest that the third company be defective for the settlement, and on December 16, 2009, the Nonindicted Co. 6 accepted the Defendant’s demand by sending an official document stating “the consent on the method of settlement of accounts” to the effect that “the Defendant sent the above details of the construction work to the Association and notified the Defendant of the details of the construction work to the extent that he was aware of the contents of the construction work.”

1) On February 11, 2010, the Defendant demanded Defendant 2 to the effect that “I have returned to the Environment Office, the Ministry of Knowledge Economy, the Ombudsman, etc. for one year to make up for the State expenses,” and that “I have to pay for KRW 20 million,000,000 on the same day, I have received a check of KRW 20 million from Defendant 2 on the same day.”

2) On March 18, 2010, the Defendant requested Defendant 2 to the above Nonindicted Company 6’s office to the effect that “I would make a statement about the settlement desired by Defendant 2’s chairman. I would request that I would make a statement about 10 million won because I would not be prosecuted. I would request that I would make a statement about 10 million won.” On the same day, Defendant 2 issued a check of KRW 10 million for face value.

3) Around March 23, 2010, the Defendant demanded that Defendant 2, at the above Nonindicted Company 6’s office, “on the same day, Defendant 2 would make a settlement document desired by Defendant 2, if, in cash, pay money is required in connection with a case under investigation by the National Police Agency, in cash,” and Defendant 2 received cash of KRW 10 million from Defendant 2 on the same day.

4) On May 18, 2010, the Defendant demanded KRW 5 million in cash at the office of the above non-indicted 6 company. Defendant 2 demanded that Defendant 2 promptly deal with the instant case by a person who is well aware of Nonindicted 8, etc. who is the petitioner of the instant case. The instant case may be promptly closed, and the settlement of accounts may not be promptly completed, as soon as possible. The Defendant demanded KRW 5 million in cash, and received KRW 5 million in cash from Defendant 2;

5) On June 15, 2010, the Defendant demanded Defendant 2 to the effect that “a wife needs to be hospitalized at a hospital,” and received KRW 5 million from Defendant 2 through Nonindicted 9 on the same day.

C. Acceptance of bribe from Nonindicted 5

On April 3, 2008, the instant association concluded a contract for the design of sewage treatment plant with Nonindicted Co. 10 (hereinafter “Nonindicted Co. 10”) on a contract amount of KRW 65 million, and transferred KRW 30 million on June 5, 2008, KRW 230 million on the pretext of the price, KRW 10 million on July 23, 2008, and KRW 30 million on November 11, 2008 to Nonindicted Co. 10.

Around May 208, the Defendant stated that Nonindicted 5, the representative director of the said Nonindicted Company 10, at the coffee shop in Daejeon, stated that “it is difficult to operate the cooperative because it has come to the head of the cooperative,” and around that time, Nonindicted 11, a director of the said cooperative, stated that Nonindicted 5, a director of the said cooperative, saying, “When the operation of the new cooperative, is difficult, he should not take personnel as a fund for the operation of the cooperative, but should not be appropriate to the extent of five million won.”

Accordingly, on June 5, 2008, Nonindicted 5 received KRW 30 million from the partnership as a design fee from the partnership, and transferred KRW 5 million to the Agricultural Cooperative (Account Number 3 omitted) account in the name of the Defendant on the same day.

Accordingly, the Defendant received 5 million won from Nonindicted 5 for the purpose of providing design service-related convenience, and received a bribe in relation to the Defendant’s duties.

2. Defendant 2

Defendant 2, as the joint representative director of Nonindicted Company 6, delivered a bribe of KRW 50 million on five occasions under the pretext of providing convenience with respect to the duties of the president of the association, such as the settlement of construction cost, to the superior defendant 1, who is the president of the association of this case, and the settlement of construction cost of the association.

[Article 1-A of Criminal Facts]

1. A statement to the effect that the defendant has received 78 million won as the salary of the defendant while he/she was in custody of a promissory note in the judgment on behalf of the association of this case, which was held by the defendant in this court;

1. Each legal statement of the witness, Nonindicted 12, 13, and 8

1. Statement of investigation reports by prosecutors (report attached to the details of the use of cards);

1. Each entry in the articles of association of Nonindicted 4 ( June 2, 2004), permission to amend the articles of association of Nonindicted 1 association, and approval to amend the articles of association of Nonindicted 1 association

【Article 1-2 of the Criminal Facts】

1. Statement to the effect that the defendant received money as stated in this Court from the defendant 2;

1. Defendant 2’s legal statement;

1. Statement made by the prosecutor on Nonindicted 9 in the prosecutor’s statement

1. Each entry in the prosecutor's investigation report (a report accompanied by a copy of the copy submitted by the defendant 2), investigation report (a report accompanied by a copy of the letter of payment for the next time), investigation report (a report accompanied by a copy of the reply);

1. The description of a check and five million won exchange, and each description of a written request for payment order (Defendant 2 of the creditor);

【Claim 1-C of Criminal Facts】

1. Statement to the effect that the Defendant received the money as stated in this Court from Nonindicted 5

1. Legal statement of the witness Nonindicted 5

1. A statement to the effect that Nonindicted 11 made a request to Nonindicted 5 for “a demand to pay KRW 5 million to the Defendant” at this court by Nonindicted 11

1. Entry of a criminal investigation report (report on details of transactions attached) and a criminal investigation report (a statement on Nonindicted 5’s confirmation document, etc. submitted by Nonindicted 11);

1. Each description of the contract, and the inquiry of five million won on the deposited screen;

【Criminal Facts Paragraph 2】

1. Defendant's legal statement;

1. Statement made by the prosecutor on Nonindicted 9 in the prosecutor’s statement

1. Each entry in the prosecutor's investigation report (a report accompanied by a copy of the copy submitted by the defendant 2), investigation report (a report accompanied by a copy of the letter of payment for the next time), investigation report (a report accompanied by a copy of the reply);

1. The description of a check and five million won exchange, and each description of a written request for payment order (Defendant 2 of the creditor);

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

A. Defendant 1: Article 2(1)2 of the Act on the Aggravated Punishment, etc. of Specific Crimes, Article 129(1) of the Criminal Act, Article 84 of the Urban Development Act [the fact of and inclusive for the acceptance of bribe from Defendant 2, the main sentence of Article 42 of the former Criminal Act (amended by Act No. 10259, Apr. 15, 2010; a fine is concurrently imposed pursuant to Article 2(2) of the Act on the Aggravated Punishment, etc. of Specific Crimes; Articles 356 and 355(1) of the Criminal Act; Article 129(1) of the Criminal Act; Article 84 of the Urban Development Act (amended by Act No. 10259, Apr. 15, 201)

B. Defendant 2: Articles 133 and 129(1) of the Criminal Act, and choice of imprisonment

2. Aggravation for concurrent crimes;

Defendant 1: the former part of Article 37, Articles 38 (1) 2 and 50 of the Criminal Act (aggravated Punishment, etc. of Specific Crimes with the imprisonment provided for in the Act on the Aggravated Punishment, etc. of Specific Crimes with the largest punishment)

3. Discretionary mitigation;

Defendant 1: Article 53, Article 55(1)3, and Article 55(1)6 of the Criminal Act (The following extenuating circumstances among the reasons for sentencing)

4. Detention in a workhouse;

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

5. Suspension of execution;

Defendant 2: Article 62(1) of the Criminal Act

6. Additional collection:

Defendant 1: The latter part of Article 134 of the Criminal Act

7. Order of provisional payment;

Defendant 1: Article 334(1) of the Criminal Procedure Act

1. As to occupational embezzlement

A. Summary of the defendant and his defense counsel

It is true that the defendant has used promissory notes in custody for the association of this case individually and received KRW 78 million under the pretext of salary. However, it is legitimate that the defendant legally received the salary that the defendant would have to receive while working as a director of the association and the head of the association. As such, it cannot be deemed that the defendant received the above money with belief that the defendant could receive the salary.

B. Determination

1) Grounds for the Defendant’s receipt of the above promissory note and cash

In the cash receipt statement (Evidence No. 1259) of the association of this case, the defendant stated as follows: ① 15 million won under the name of "the amount of benefits accrued" on July 20, 2007; ② 15 million won under the name of "the amount of benefits accrued" on July 23, 2007; ③ 100,000 won under the name of "payment" on September 21, 2007; ④ 150 million won under the name of "payment" on June 19, 2008; ⑤ 50 million won under the name of "payment" on February 24, 2009; ⑤ 200,000 won under the name of "payment" on February 24, 2009; the defendant appears to have been classified as the aggregate of the amount of benefits received on July 20, 2007; and 200,000 won among the directors on July 29, 2008.

(ii) the facts of recognition

Comprehensively taking account of the evidence duly adopted and examined by this Court, the following facts can be acknowledged.

A) The process of establishing the instant association and the process of modifying the articles of association

① When hot spring was discovered in the vicinity of Cheongyang-gun in 1979 (hereinafter omitted), 80 neighboring land owners of the said hot spring promoted the establishment of an association for the creation of a tourist destination around the hot spring and completed the registration of incorporation on June 29 of the same month with permission from the Cheongyang-gun on June 27, 1996, and on November 21, 1998 from the Cheongyang-gun Gun for the purpose of promoting the project for the creation of the foundation of the tourist resort (hereinafter “instant project”) pursuant to Article 25(3) of the Tourism Promotion Act (hereinafter “instant project”) pursuant to Article 25(3) of the same Act.

② From September 15, 1998, the instant association enacted and implemented the “Development Regulations” (Evidence No. 1977 pages, hereinafter “instant Development Regulations”) by the Mutual Association’s rules. The details of the provision regarding the payment of benefits under the said Regulations are as follows.

(2) The employee of the partnership shall be paid the amount specified in the employment contract entered into between the head of the partnership and the employee, and a separate bonus, business promotion expenses, and other allowances may be paid within budgetary limits according to the work performance rating division.

③ On June 2, 2004, the instant association opened an ordinary general meeting and changed the instant association to a cooperative established by landowners in an urban development zone pursuant to Article 13 of the Urban Development Act. Accordingly, the said development agreement was also amended by the articles of association (Evidence Nos. 1686, 1686, hereinafter referred to as the “instant articles of association”). Cheongyang-gun approved the amendment of the above articles of association on September 2, 2004. The provisions on the payment of remuneration for executive officers of the instant articles of association are as follows.

Article 19 (Remuneration, etc. for Executives) (1) of the Table contained in the main sentence of this Act shall not be paid to officers other than full-time officers: Provided, That the expenses incurred by the performance of duties of executives may be paid within the scope of the association’s budget.

④ On January 16, 2008, the instant association opened a general meeting of shareholders and passed a resolution to amend the articles of association to add the provision that “Notwithstanding the provisions of subparagraphs 1 through 17 of Article 21, which lists the matters subject to the resolution of the general meeting, to the efficient promotion of the association’s objective business without delay, any of the subparagraphs of Article 21 shall be executed by the board of directors and reported to the ex post facto general meeting” (Evidence Record 107 pages).

B) Disputes over the appointment of the president of the partnership

① On June 2, 2004, the instant association opened a general meeting of shareholders to elect Nonindicted 19 as the president of the association. Nonindicted 8, 20, 21, and 22 as directors were appointed. As seen above, the association’s bylaws were amended by the articles of incorporation in the instant development agreement (Evidence No. 4292, hereinafter referred to as “new union force”). However, Nonindicted 15, 16, and 18 (hereinafter referred to as “former directors and Nonindicted 14, the former president of the association, as members of the association, were elected as the executives of the association without the qualification of Nonindicted 19, the said association’s resolution to appoint the president of the association was null and void. On June 8, 2004, the Daejeon District Court filed an application for temporary suspension of the performance of duties against Nonindicted 19, and new directors (the application was withdrawn on September 17, 2004).

② Accordingly, the new union members decided to hold an extraordinary general meeting on September 16, 2004, and held an extraordinary general meeting at the office of the association. When the situation where the police called out due to severe humiliations and physical fighting among the union members, Nonindicted 19, who was in progress as the president, declared the closure of the association and retired from the new union together with the new union members. The remaining union members, who were the former president of the association, decided to elect Nonindicted 15 as the Speaker pro tempore to proceed with the meeting after the resolution of Nonindicted 14 to proceed with the meeting, and decided to elect Nonindicted 14 as the president of the association in accordance with the development rules of this case, which are the previous rules, and elected Nonindicted 15, 17, 16, and 18 as directors, were again the former union members of the association.

③ At the special meeting of September 16, 2004, the new partnership force, including Nonindicted 19, alleged that the election of the former partnership force, including Nonindicted 14, as an executive officer, was null and void. On November 26, 2004, the Daejeon District Court filed an application for the suspension of performance of duties of executive officers and the provisional disposition of appointment of acting executive officers against the former partnership force at the Daejeon District Court’s branch office of public order on November 26, 2004. The above public order branch office dismissed the above provisional disposition application, but the Daejeon High Court, which was the appellate court of the above case (2005Ra74), declared the closure of the meeting on November 10, 205, was legitimate measures to have declared the closure of the meeting in the situation where Nonindicted 19 was unable to continue the meeting, and thereafter, it was determined that the association members remaining without going through a separate convening procedure and elected the former partnership force as executive officer, including Nonindicted 14, etc., and subsequently, revoked the decision of the first instance court and 198.

④ While the above dispute continues for a long time, the new partnership and the former partnership have agreed to recognize that the business affairs of the instant partnership were delayed due to the dispute related to the above provisional disposition and causing serious damage to the instant partnership. Defendant 1, Nonindicted 13, 12, and 23 note 3, and Nonindicted 25, who, in order to fully consider the positions of both parties after the future, resigned from the acting director and excluded the new partnership and the former partnership from the time the judgment on the merits of this case became final and conclusive. The Daejeon High Court decided to appoint the Defendant as the acting director, Nonindicted 13, 12, 23, and 25 as the acting director on June 23, 2006, taking account of the above contents of the agreement in the case of the provisional disposition.

⑤ On the other hand, on December 6, 2005, the new partnership force, including Nonindicted 19, filed a lawsuit seeking confirmation of invalidity of the resolution of the general assembly by filing a lawsuit against the association of this case with the Daejeon District Court on December 6, 2005 as to the above provisional disposition, and on May 11, 2007, the same court decided to recommend reconciliation that "the plaintiff and the defendant (the union of this case) agree to perform the duties of the president of the association until the time of the general meeting of August 23, 2007 and do not raise any objection. The plaintiffs and the defendant did not interfere with the opening of the general meeting of August 23, 2007, and shall elect the president of a new partnership in accordance with legitimate procedures, such as the articles of association, etc."

④ On January 16, 2008, the instant association held a general meeting of shareholders and resolved to elect the above acting directors, including the Defendant, as the president and directors of the regular association.

3) Whether the receipt of benefits as the president of the partnership is legitimate and the defendant's intent to illegally obtain benefits

A) Defendant and defense counsel’s assertion

(i)The basis for receiving the benefits

The association of this case decided to pay wages to full-time executives at the board of directors on July 7, 2006 (the board of directors held on August 21, 2006) pursuant to Article 21(1) of the development agreement, and decided to open a board of directors to raise operating funds of the association even on December 7, 2006, May 16, 2008, November 23, 2008, and December 22, 2008, the above resolution was made on the premise that the defendant has not been paid as the head of the association. Accordingly, the defendant received wages as the head of the association according to the resolution of the board of directors lawfully.

【Non-existence of Doz.

Since the Defendant did not know the existence of the instant articles of association from the previous president of the cooperative until January 2008 because he was unable to receive a proper transfer from the former president, the Defendant was paid benefits through a resolution of the board of directors on July 7, 2006, with the knowledge that the instant development agreement, which was applied to the past, continuously applies to the validity. Therefore, the Defendant did not intend to obtain unlawful acquisition.

【General Meeting on Payment of Benefits to the President of the Union

The Defendant cannot be held liable for embezzlement, on the grounds that the instant association underwent the procedure of accepting payment of the union president’s benefits at the general assembly of January 16, 2008 and the general assembly of April 15, 2011.

B) Determination on the grounds for receiving benefits

As shown in the above facts, as long as the union of this case adopted a resolution to revise the development rules of this case at the ordinary meeting of June 2, 2004 to the articles of association of this case, and as the Cheongyang-gun approved the modification of the above articles of association, the previous development rules of this case become null and void, so the development rules of this case cannot be the basis for receiving benefits.

Furthermore, we examine whether the Defendant can be deemed to have received benefits in accordance with the instant articles of association. According to the instant articles of association, “The full-time officer of the union shall be paid remuneration in accordance with the separate remuneration regulations set by the union, and the remuneration regulations shall be accepted at the general meeting.” However, the Defendant, at the police, stated that “The Defendant has established the remuneration regulations on January 22, 2008 (Evidence No. 1179, its main contents, No. 3 of the evidence, the resolution of the board of directors dated July 7, 2006, and Article 19 of the instant articles of association, and the head of the union shall be paid KRW 3.5 million monthly salary and KRW 1 million for activity expenses.” However, it cannot be viewed that the above provision has no effect on the Defendant’s receipt of remuneration regulations in accordance with the articles of association, not by the first and fourth suspect interrogation protocol, evidence record No. 1150, No. 1343, Jan. 22, 2008).

Ultimately, we cannot accept the defendant's assertion that there are grounds for receiving benefits as the president of the partnership.

C) Determination as to the existence of an intention to obtain unlawful permission

(1) Whether the Defendant was aware of the validity of the instant development agreement

On April 15, 2010, the defendant was asked of questions about the grounds for the payment of remuneration to full-time executives and employees at the time of the first and fourth examination of the police (Evidence records 1150 pages, 1343 pages), and recognized that benefits such as the president of the association should be paid according to the remuneration payment rules and the amount of the general meeting's approval. Although there are the remuneration regulations (Evidence records 1179 pages) made by himself on January 22, 2008, he did not yet apply because he did not have any effect since he did not have any consent of the general meeting, the defendant did not mention the existence of the development rules of this case after the six-time examination of the police. The defendant did not mention that he was paid remuneration to the president of the association through a resolution of the board of directors in accordance with the development regulations of this case (Evidence records 1150 pages, 1343 pages). If the defendant was actively aware that he would receive remuneration from the president of the association pursuant to the development regulations of this case, he did not mention the general meeting.

In addition, the Defendant attended the instant association’s general meeting on June 2, 2004 as an agent of Nonindicted 26 as a member of the Plaintiff. Prior to the resolution on the amendment of the association’s general meeting, the Defendant appeared to have been well aware of the fact that the instant development agreement was amended by the instant articles of association (Evidence No. 4209, No. 4292).

In addition, at the time when the defendant takes office as an acting person, the first day is to grasp the provisions of the articles of association that function as the highest norm in the course of managing the affairs of the association, and since the articles of association of the association can be obtained since they are kept in the supervising government office, even if the defendant did not receive the relevant documents from the former executive department of the association ( there is no content to request the submission of all the regulations of the association in the notice demanding cooperation between Nonindicted 14 and Nonindicted 19, the former president of the association, and Nonindicted 19, and there is no content to require the submission of all the regulations of the association, even if the defendant did not obtain the articles of association of this case and believed that the development rules of this case were valid.

Therefore, it is difficult to accept the Defendant’s assertion that the instant development agreement is valid.

Whether there was a resolution in the board of directors, etc. on August 21, 2006 on the payment of union remuneration

On August 21, 2006, the Defendant passed a resolution of the board of directors to pay the amount of KRW 3.8 million per month (the basic amount of KRW 3 million, transportation expenses and business expenses, KRW 800,000,000) to the president of the association. The Defendant asserted that the minutes of the board of directors were retroactively prepared as of July 7, 2006. The evidence corresponding thereto lies in the minutes of the board of directors (Evidence 11.57 page) dated July 7, 2006 submitted by the Defendant. However, in full view of the statement of Nonindicted 13, 12, and 8’s legal statement, prosecutor’s investigation report (report on the use of the card), the instant association did not hold a meeting of the board of directors on July 7, 2006, but it did not hold a specific meeting of the board of directors on July 21, 2006, and it did not hold a resolution of the board of directors on July 21, 2006.

In light of the minutes of the board of directors (Evidence No. 1161 of the evidence records), the minutes of the board of directors (Evidence No. 1163 of May 16, 2008), the minutes of the board of directors dated November 23, 2008 (Evidence No. 1166 of the evidence records), the minutes of the board of directors meeting (Evidence No. 1166 of December 22, 2008), and the minutes of the board of directors (Evidence No. 1168 of the evidence records) of December 22, 208 submitted by the defendant, the above minutes cannot be deemed as the contents of a direct decision for the payment of benefits to the president of the association. In addition, considering the above legal statements of the defendant, witness, Nonindicted 13, 12, and 8, the above board of directors did not actually have been held, and since the defendant did not attend the meeting, the minutes of the board of directors with the consent of the majority 13, 12, and 28 of the members of the association were merely able to recommend the above minutes.

Meanwhile, although Nonindicted 25 made a statement to the effect that the above board of directors was held in this court, Nonindicted 25, along with Nonindicted 8 and 7, made a statement to the effect that it was actually held by the above board of directors, Nonindicted 25, together with Nonindicted 8 and 7, made a concrete statement about the Defendant’s genuine act to the investigation agency, as well as about one year after the commencement of the police investigation against the Defendant, and consented to the submission of a petition in a situation where “Nonindicted 7 and 8 did not confirm the fact-finding despite being forced,” and later, he became aware of the fact that the Defendant was dedicated for the partnership,” which later withdrawn the petition with face-to-face statement to the effect that it is difficult to obtain, and the subsequent statement is completely inconsistent with the contents that it was made before, and thus, it is difficult to grant credibility without objectively and thus, it is insufficient to make the above Nonindicted 13 and 128 statement at court.

D) Determination as to whether a general assembly approval and embezzlement are constituted

Examining the minutes of the instant association’s ordinary meeting on January 16, 2008 (Evidence Records 1478, 4310 pages), it can be seen that the resolution was presented to the effect that “The board of directors approves the preferential payment of the amount of the loan in preference to the amount of the loan, such as the disposition of the land allotted by the authorities in recompense for development outlay or the subsidies of financial and cooperative companies, only to the amount confirmed by accurately calculating the details and amount of the debt of the association (construction cost, loan, service cost, labor cost, and other amount of the unpaid association).” However, unless the payment items and the specific amount of the payment for the president of the association as to the foregoing agenda are presented, it cannot be deemed that there was a legitimate approval for the president’s payment of the association’s salary merely with the abstract contents on the method of paying the amount of the association’s debt.”

In addition, at the ordinary meeting of April 15, 2011 (Evidence No. 3786 of the evidence record) of the instant association, the settlement of accounts concerning revenues and expenditures from the operation of the association is reported and the settlement of accounts is approved. However, it can be recognized that the Defendant passed a resolution to approve the settlement of accounts. However, at the time when the Defendant illegally withdrawn the operating funds of the association with the intent of unlawful acquisition, the crime of embezzlement has already been completed. Thus, the above ex post facto resolution does not affect the establishment of embezzlement.

4) Whether the receipt of an annual salary as a director for business management is legitimate and whether an intention to obtain unlawful employment exists

A) Defendant and defense counsel’s assertion

The Defendant’s annual salary contract (from October 1, 2004 to September 30, 2005, the Defendant is to receive KRW 36,90,000,000 as the annual salary when serving as the executive director of the instant association while serving as the business management director of the instant association from October 1, 2004 to September 30, 2005. Evidence No. 1889, hereinafter “the first employment contract”) and the employment contract of September 21, 2005 (the Defendant as the general director of the instant association from October 1, 2005 to the time when the partnership is dissolved after the completion of the partnership’s development project). As such, it is difficult to view that there is an unlawful acquisition of the Defendant’s annual salary since the Defendant received the annual salary as the executive director on the ground of the evidence record No. 1422, hereinafter “the second employment contract”).

B) Whether the receipt of an annual salary under a labor contract is justifiable

The witness non-indicted 14 stated in this court that "the seal affixed to the second and second labor contract of this case is the seal of the head of the association, but the above seal was withdrawn on June 2004, and the above seal was kept in custody in the office of an attorney-at-law, and thus there was no seal affixed by a third party." The above testimony was that the time when the first and second labor contracts of this case were prepared ( October 1, 2004) was signed by the general assembly of the association on September 16, 2004, when the non-indicted 14 was elected as the head of the new association and it was long time when it was difficult for the association to perform its normal business in a dispute between the old union and the new union. In addition, it is doubtful that the first and second labor contracts of this case were made by the person in whose name it was named, and thus, the association of this case was not legally entitled to represent the association in the procedure of the labor contract of this case. In addition, as seen earlier, it cannot be found that the association of this case was unlawful.

Even if the first and second employment contracts were made genuine, Article 19(2) of the instant articles of association, which was in force at the time of the formation of each of the above employment contracts, provides that “The full-time paid employee shall be paid remuneration in accordance with the separate remuneration regulations set by the union, and the remuneration regulations shall be subject to the consent of the general meeting.” The instant association did not enact the remuneration regulations, and each of the instant employment contracts against the Defendant did not receive the consent of the general meeting. Thus, it cannot be deemed justifiable for the Defendant to receive the annual salary as a business management director in accordance with each of the above employment contracts.

In addition, the contents of the defendant's duties stated in each of the above employment contracts include "matters concerning public relations and business management" and "all matters related to the association". Thus, at the time of the preparation of the above employment contract, the new union and the former union were in a situation where the new union and the former union were not properly able to perform their duties, and the non-indicted 19 continued to claim the status of the union head and manage the affairs of the association despite the election of the president of the association with respect to the non-indicted 14, while the non-indicted 14 did not participate in the affairs of the association at all because the body is not good, it is difficult to view that the defendant provided the labor corresponding to the price for the association of this case at the time of the conclusion of the above employment contract (the defendant submitted evidence Nos. 8 through 10 on the ground that he was working for the association of this case, but even if the above evidence was examined, it cannot be known that the defendant had performed any duties as a director

Therefore, we cannot accept the argument that the defendant properly received the annual salary in accordance with the above employment contract.

C) Whether the Defendant had a criminal intent to obtain unlawful orders

At the time of concluding each of the instant labor contracts, the Defendant was not in the position of the president of the partnership or the acting director of the partnership. However, the Defendant received unpaid benefits based on each of the instant labor contracts after the Defendant was appointed as the acting director for the president of the partnership. As seen earlier, it is difficult to deem that the Defendant was unaware of the existence of the instant articles of association, as seen earlier, the Defendant was well aware of the legal dispute between the former and the new partnership, and was directly involved in the lawsuit, and thus, it appears that the court made a decision that Nonindicted 14 was defective in the resolution at the special general meeting of September 16, 2004, which was elected as the president of the partnership. In light of the fact that the Defendant was well aware of the fact that the receipt of the unpaid benefits was not justifiable at the time of receiving the said unpaid benefits. Accordingly, the Defendant’s intent to illegally

C. Conclusion

Ultimately, the defendant and his defense counsel's arguments in this part are without merit.

2. As to the violation of the Act on the Aggravated Punishment, etc. of Specific Crimes

A. Summary of the defendant and his defense counsel's assertion

The defendant and his defense counsel asserted to the effect that the defendant borrowed 50 million won as stated in the judgment by the defendant 2 and did not receive it as a bribe.

B. Determination

1) Criteria to distinguish bribe from borrowed money

In the context of the crime of bribery, if the accepter claims that he/she has received the money from the accepter but not received the money from the accepter, whether or not the accepter actually borrows the money shall be determined by taking full account of all the objective circumstances revealed by evidence, such as the motive, reason for delivery, and method of receiving the money from the accepter, relationship between the accepter and the accepter, the position and work experience of the accepter, the need for borrowing the money, the possibility of borrowing the money from the person other than the accepter, the amount and method of borrowing the borrowed money, the economic situation of the accepter and the amount of the borrowed money, the amount of the borrowed money, the amount of the borrowed money, the economic situation of the accepter, the amount of the guaranteed money, the existence of payment period and interest agreement, the possibility of compulsory execution, etc. (see, e.g., Supreme Court Decisions 2007Do3943, Sept. 7, 207; 2009Do4386, Sept. 30, 2010).

(ii) the facts of recognition

Comprehensively taking account of the evidence duly adopted and examined by this court, the following facts can be acknowledged.

A) Progress of Nonindicted Company 6’s business related to the instant association

(1) The conclusion of the contract for Nonindicted Company 6 and the lending of money to the instant association

① On December 28, 2001, Nonindicted Co. 6 entered into a contract (Evidence No. 947 pages) with the instant association (the president of the instant association: Nonindicted Co. 14) for the creation of a site for ○○○○○○○○○ Tourism Site and the disposal of sewage, and leased KRW 1.17 billion in total to the instant association as design expenses, supervision expenses, public charges, and other operating expenses of the association in 2002 and 2003 pursuant to the contract clause (Article 6(1)).

② As of August 26, 2004, Nonindicted Company 6 and the instant association agreed to determine the principal and interest of loans as KRW 1.74,38 billion. As the instant association did not continue to repay the above loans, Nonindicted Company 6 filed a lawsuit against the instant association claiming loans amounting to the Daejeon District Court 2007Kahap7601. As to the instant case, on May 21, 2008, between the instant association and Nonindicted Company 6, “the Defendant (the instant association)” was KRW 70 million and its interest calculated at the rate of KRW 8% per annum from August 1, 2001 to the date of repayment, and the amount calculated at the rate of KRW 407,068,640 as of December 31, 208, the Defendant did not dispose of the said money with the interest of KRW 150,000,0000,0000,0000,000 from December 31, 2008.

③ Nonindicted Co. 6 additionally lent KRW 50 million to the instant association on July 9, 2007, as well as leased KRW 730,793,720 in total under the pretext of partnership operation expenses, design, supervision, and construction cost, etc. by January 31, 201 (Evidence Records 4852 pages).

B. discussion on the completion and settlement of construction works of Nonindicted Company 6

① At the time of January 16, 2006, Nonindicted 8, who was acting as a director of the instant association, promised to take part in the construction work of building the foundation of the instant project by borrowing from Nonindicted 7 KRW 350,000,000,000, in terms of the legal expenses necessary for the legal disputes between the former and the new partnership force, and upon the occurrence of legal disputes between the former and the new partnership force, if the new partnership force proceeds with the progress of the project, Nonindicted 27 Company (hereinafter “Nonindicted 27 Company”) operated by Nonindicted 7, as the construction work of building the foundation of the instant project.

② Nonindicted Co. 6 was unable to carry out construction due to the instant situation on March 207, 207, starting with cutting of the hotel site, and engaging in work for about two months. However, according to the foregoing commitment with Nonindicted Co. 7, the instant cooperative concluded a construction contract with Nonindicted Co. 27 for the construction of the instant hot spring complex and the construction contract for the pipe installation, and the Defendant demanded Nonindicted Co. 6 to succeed to and suspend the construction work related to the site to Nonindicted Co. 27.

③ On September 26, 2007, Nonindicted Company 6 suspended construction and requested the instant association to settle the accounts of KRW 1.7 billion. However, on December 16, 2009, Nonindicted Company 6 demanded the said association to pay the construction cost “I would like to not cause the instant association to settle the accounts, and would promptly request the said association to pay the construction cost (Evidence No. 5122 page). Accordingly, on December 26, 2009, the instant association sent a public notice to Nonindicted Company 6 stating that “I would select and confirm the third company’s construction work details in order to calculate more careful and accurate construction content” (Evidence No. 5124 page).

④ On June 2010, Nonindicted Co. 28 supervision company selected by the instant association calculated Nonindicted Co. 6’s flag altitude of KRW 1.594 billion (Evidence No. 5153), but the instant association did not provide settlement even until Defendant 2 delivered KRW 50 million to the Defendant.

Then, the instant association and Nonindicted Company 6’s additional construction contracts

① On July 15, 2008, Nonindicted Co. 6 entered into a contract for the construction of sewage treatment plant of the instant project site with the instant association in total construction cost of KRW 6,879,800,000 (Evidence No. 75 of the record), and commenced the sewage treatment plant construction on October 10, 2008. On December 30, 2008, Cheongyang-gun Office paid KRW 3,050,000,000,000 as the construction cost for the sewage treatment plant of the instant project site.

② On December 28, 2009, the instant association notified Nonindicted Company 27 of the termination of the construction contract, and announced on October 22, 2010 that the instant association will complete the remainder by selecting Nonindicted Company 6 as a new contractor for the construction project terminated by the said contract.

B) Relationship between the Defendant and Defendant 2

① The Defendant and Defendant 2 were selected and appointed as an acting president of the instant association as an acting president of the instant association, and there was no special relationship with the instant association as well as with respect to the said construction work.

② Defendant 2 loaned KRW 3 million to the Defendant on January 10, 2008; KRW 5 million on February 15, 2008; KRW 15 million on June 4, 2008; KRW 5 million on June 5, 2008; KRW 15 million on July 23, 2008; KRW 5 million on July 23, 2008; KRW 30 million on September 29, 2008; KRW 1.5 million on November 11, 2008; KRW 20 million on December 16, 2008; and KRW 30 million on December 23, 2008; and KRW 45 billion on sewage as the name of supervision (including supervision).

③ Defendant 2 deposited KRW 50 million in the Defendant’s account, each of which was issued on June 24, 2010 and July 7, 2010, respectively, after issuing the issuance to the Defendant.

C) Defendant’s duties

The Defendant, as the president of the instant association, was in a position to exercise overall control over the overall business of the association and to manage the funds of the association, and whether to make the settlement of Nonindicted Company 6’s other part of the construction work and the repayment of the debt to Nonindicted Company 6 falls within the scope of authority of the president

D) Method of receiving money

Defendant 2 delivered to the Defendant in cash the amount of KRW 20 million as of February 11, 2010, KRW 10 million as of March 18, 2010, KRW 5 million as of June 15, 2010, and KRW 10 million as of March 23, 2010 and KRW 5 million as of May 18, 2010.

E) Whether the security, payment period, and interest are agreed

① When Defendant 2 received the above KRW 50 million from Defendant 2, the Defendant did not specifically set the due date or interest.

② On May 13, 2010, the Defendant under investigation into the instant case, referred to Defendant 2 at an investigative agency to make a statement, and delivered a certificate of loan payment and a copy of a notarial deed prepared as of June 27, 2007 (Evidence record 5180, 5307), and the certificate of payment of the above loan shall be stated as follows: “The Defendant, as security of No. 6816, 2005, Defendant 2 had to borrow money on an individual basis within the limit of KRW 100,000,000,000,000,000,000,000,000,000,000,000,0000,000,000,000,000,000,000,000,000,000,000,000,00,00,00.

F) Defendant 2’s demand for payment

① On August 19, 2010, Defendant 2 sent to the Defendant a letter verifying that “I, on June 27, 2007, drank the Defendant with the transfer of credit within the limit of KRW 100 million by means of the transfer of credit (mortgage) and agreed on June 27, 2007, in excess of KRW 100 million until November 11, 2008, the amount of the rare amount borrowed up to KRW 140 million until then reaches KRW 140 million. At present, Defendant 2 borrowed the thickness in excess of KRW 140 million, and requested additional adjustment of the claim.” Moreover, Defendant 2 presented to the Defendant a letter verifying the content that “I think that I think that the interest rate is at least 8% with a thickness of KRW 100 million.”

② 피고인 2는 2011. 6. 17. 피고인에게 “그간 조합장에게 나름대로 이해하고 협조를 했습니다. 그러나 조합장님의 말씀처럼 공소외 6 회사 피고인 2는 피고인 1 조합장에게 코가 꿰여 있으니 이제는 그것으로부터 벗어나야겠습니다.”라는 내용이 기재된 내용증명 우편(증 제1호증)을 보내면서, 2007. 7. 9.부터 2011. 3. 15.까지 피고인 2가 피고인 또는 이 사건 조합에 지급한 돈과 관련하여 일기장에 그때그때 기재하였던 내용을 정리하여 ‘일기내용 일부를 담은 메모 11장’이라는 제목으로 첨부하였는데, 위 메모에는 2010. 3. 18.자 1,000만 원, 2010. 5. 18.자 500만 원, 2010. 6. 15.자 500만 원에 대하여는 ‘빌려준 것’이라고 기재되어 있었고, 2010. 3. 23.자 500만 원에 대하여는 ‘500만 원으로 현금 지급’이라고 기재되어 있었으며, 2010. 2. 11.자 2,000만 원에 대하여는 아무런 언급이 없었다.

③ On July 4, 2011, Defendant 2 sent a letter verifying contents (Evidence No. 5826 of the record) to urge the Defendant to repay the loan amount of KRW 194.5 million (=the above (b) + KRW 134.5 million + the above KRW 50 million + the above KRW 20 million). On the following day, Defendant 2 requested the Daejeon District Court to pay the loan amount of the same amount. On October 24, 2011, Defendant 2 requested the Defendant to pay the loan amount of KRW 194.5 million (Evidence No. 5830 of the record), and Defendant 2000 of the Daejeon District Court’s motion to pay the loan amount of KRW 5.5 million (Evidence No. 5830 of the record), and Defendant 201 of the Daejeon District Court’s motion to accept the above KRW 194.5 million (Evidence No. 5830 of the record).

G) Contents of Defendant 2’s entry

The day-book set (Evidence Nos. 5289) submitted by Defendant 2 to an investigative agency was prepared whenever Defendant 2 trades money with the Defendant, at that time, on the transaction details and the amount at that time. Of them, the contents related to KRW 50 million as stated in the judgment are as follows.

본문내 포함된 표 ○ 2010. 2. 11.자 2,000만 원 “어제 피고인 1 조합장이 왔었다. 2,000만 원 이야기. 송금하지 말고 그냥? 보수 2장 국민은행 1,000만 원, 하나은행 1,000만 원 지급. 정산도 하자고 했다. 빨리 하자고 응했다. 무슨 대가성인듯 한 맘. 피고인 1이 공소외 11에게 교환하게 했다. 그 이유는 알 수 없다. 그냥 도와달라고 했고, 정산을 빨리 하자고만 했을 뿐이다. 그냥 교환을 돌리면 되는데 흔적을 남기기가 싫은 모양이다. 사람을 의심하니 나도 이상하다. 어쩐지 기분이 이상하고 찝찝하였다. 대가성인 듯한 느낌이어서 그러한 기분으로 찜찜했다. 말을 못했지만 그간 경비가 많이 났다. 환경청, 지식경제부, 고충처리위원회 그냥 되는 것이 아니다. 그래서 도움을 요청한다고 그랬다. 어느 정도 수긍이 갔다. 이해도 되고. 그런데 공소외 11과 같이 했다는 것은 좀 거북했다. 며칠 전 나에게 피고인 2 회장은 나에게 코가 꿰였다는 말의 의미에 대하여 여러가지 생각을 했다. 그간에 준 것이 일부 뇌물도 있다는 것인지 그 의미가 무엇인지 알 수 없으나 상당히 의미 있는 듯 했다. 당초 설계할 때는 8, 9,000만 원 정도였는데 설계비 건으로 1억 450만 원이 들었다. 그것을 자신에게 달라고 인정해 달라고 하는 듯한 느낌을 받았다. 정말 기분이 좋지 않았다. 정말로 이상하다. 돈이 그렇게도…….(2010. 2. 11.)” ○ 2010. 3. 18.자 1,000만 원 “변호사를 선임한다고 했다. 대전지방검찰청 부장검사로 요즈음 옷 벗고 개업한 사람이라고 했다. 검찰청에 있는 친구가 하는 말이라고 하면서 이야기해보니 걱정하지 말라고 한다고, 오늘 1,000만 원을 부탁했다. 변호사비용으로……. 그래서 지급해 주었다. 그냥 도와주고 싶어서 조건 없이……. 당연한 것처럼 마치 맡겨놓은 것 같이……. 내가 때는 이때다 싶어서 정산에 관하여 이야기했다. 피고인 1이 하는 말이 검찰로 사건서류가 넘어오면 즉시 해 주겠다. 내가 기소가 되면 행위를 할 수 없다면서 꼭 해주겠다고 굳게 약속했다.” ○ 2010. 3. 23.자 1,000만 원 “사건에 대하여 이야기했다. 공소외 8, 공소외 7이라고 하면서 경찰에서 서류가 검찰로 넘어오면 피고인 2 회장이 원하는 정산서류를 다 해주겠다. 기소되면 할 수 없다면서 말이다. 그러면서 1,000만 원을 부탁하였다. 많은 도움을 주기로 했다면서 당연한 것처럼 이야기……. 여러 사람의 도움이 필요하니 돈이 필요하다면서 현금으로 1,000만 원을 부탁해서 또 지급하여 주었지요. 더 이상 부탁하지 않겠다고 다짐까지 했는데……. 지금 이때까지 총 1억 7,450만 원을…….” ○ 2010. 5. 18.자 500만 원 “공소외 8, 공소외 7을 거꾸로 고소하기로 했다면서 변호사 수임료로 500만 원을 요청 당당하게 부탁의 말도 없다. 사장이 없다고 내일 보자고(2010. 5. 17.).”, “500만 원 요청 빌려주었다. 그리고 500만 원을 더 요구했다. 거부했다. 얼굴색이 좋지 않았다(2010. 5. 18).” ○ 2010. 6. 15. 500만 원 “부탁할 것이 있어서 왔다고 하기에 미리 선수를 쳐서 죽는 시늉을 했다. 그냥 갔다. 이제는 겁이 난다. 무엇이든지 당연한 것처럼 이야기한다. 마치 피고인 1 때문에 공사를 한 것처럼 나에게 계속해서 부담을 주곤 했다.(2010. 6. 9.).” “부인이 중병으로 서울 병원 이야기를 하면서 돈 걱정을 했다. 또 쇼를 하는구나 생각을 했다(2010. 6. 12.)”, “공소외 9 씨도 피고인 1이 치료비 때문에 걱정한다고 했다. 그때 마침 돈이 없어서 카드(법인)로 했으면 한다고 했는데……. 거부당하고 현금이 필요하다고 했다. 주지 못했다. 내일 보자고……(2010. 6. 13.).” “500만 원을 공소외 9에게 전달했다. 공증서를 주었다(충남공증인 합동사무소 2005 제6816호)로 한 내용을 담아서 → 공증을 해 달라고 요청했다(2010. 6. 15).”(주5)

Note 5)

3) As to the credibility of Defendant 2’s statement

A) Defense of Defendant 2’s statement

① In the first witness investigation conducted by the prosecution, Defendant 2 stated that the amount of KRW 50 million, as indicated in the holding, was all the money lent to the Defendant (Evidence Records 4854 pages).

② In the second witness investigation conducted by the prosecution, Defendant 2 loaned KRW 20 million as of February 11, 2010, KRW 10 million as of March 18, 2010, and KRW 5 million as of June 15, 2010. However, Defendant 2 stated that the amount was KRW 10 million as of March 23, 2010, KRW 5 million as of May 18, 2010, and that the Defendant would be able to receive prompt settlement of the construction cost of the site of the instant project, and that the amount was changed in cash due to money that the Defendant did not want to be determined (Evidence No. 5099).

③ Defendant 2 stated that the entire amount of KRW 50 million, as indicated in the first interrogation of a suspect at the prosecution, was equal to the Defendant’s payment. In other words, there were issues, such as the consent to the method of settlement at the time, the selection of a supervisory company for the actual part of the statement of weather, etc., and even thereafter, Defendant 2 had no choice but to pay the amount of money for which it is obvious that he would continue to deal with the settlement if he did not take account of the Defendant’s demand by various means, such as a failure to settle the settlement for various reasons. As to Defendant 2’s statement that prior to the aforementioned order constituted a bribe of KRW 15 million, Defendant 2 denied the fact that he had not received only KRW 15 million while raising an objection against the above payment order, and the Defendant also stated that only the part acknowledged by the Defendant was stated as a bribe (Evidence No. 5662 of the evidence record).

④ Defendant 2 made a statement to the same effect as the interrogation of suspect under the prosecution No. 2, 6) in the interrogation of suspect and this court.

B) The credibility of Defendant 2’s statement

As above, Defendant 2’s statement was completely denied the offer of a bribe in the first time, and it was found that the offering of a bribe was recognized in cash only in the middle, and the entire statement was changed to acknowledge the offering of a bribe. However, there is no consistency in the above statement. However, Defendant 2’s explanation on the opportunity that Defendant 2 changed the statement as above can be accepted. In particular, Defendant 2’s statement as a suspect at the prosecutor’s office is a statement at the risk of criminal punishment for himself/herself, and there is a motive to find the Defendant at the risk of criminal punishment, or there is a reduction or exemption of such crime. Unless there are special circumstances, Defendant 2 cannot readily reject the credibility of his/her statement. Considering that it is difficult to view that Defendant 2’s new motive to see that Nonindicted 7 was unfavorable to Defendant 2, even if he/she did not have any inconvenience in receiving a criminal investigation agency’s statement, it is difficult to view that Defendant 2’s aforementioned act of offering of a bribe, as well as that it did not have any economic difficulty in recognizing the above Defendant 2’s statement.

Therefore, the statement that Defendant 2 provided KRW 50 million as a bribe is reliable.

4) Whether the case constitutes a bribe

In light of the above facts and the following circumstances revealed from the evidence duly adopted and examined by this court, even though Defendant 2 stated that the expression "loan 50 million won" was left in a single-book, and that the above 50 million won was a loan to Defendant 2 who did not settle as if it was expected thereafter (the above 50 million won was included in the loan, the defendant 2 was expected to pay the above 50 million won to the defendant, and the defendant did not expect the settlement of the construction price, unlike the expectation, it was expected that the above 50 million won would have been settled. Thus, the defendant would have been able to receive a full return of 50 million won as well as 50 million won, and this is acceptable). The above 50 million won was a bribe of the defendant with authority to receive the payment of the construction price from the defendant 2, and it is reasonable to view it as a bribe to be a bribe of the defendant with authority to receive the payment of the construction price from the defendant 2.

① The motive for receiving money from Defendant 2 – The Defendant demanded that Defendant 2 pay money under various circumstances, including union operation expenses and attorney’s fees (as seen below, the Defendant has consistently made a statement with respect to the user of certain money), and Defendant 2 did not comply with the Defendant’s demand to pay the work price from the partnership.

② Defendant 2 delivered KRW 50 million in check or in cash as indicated in the judgment. Defendant 2 had a difference in the method of giving and receiving money in that Defendant 2 deposited all the borrowed money paid to the Defendant or the cooperative into the account in the name of the Defendant or the cooperative (the Defendant asserted that Defendant 2 would no longer engage in transactions with the instant cooperative and would lend the money to the Defendant, but the check or in cash was delivered to the Defendant. However, this is contrary to the contents of the above day-book directly prepared by Defendant 2, and it is ordinarily possible for Defendant 2 to give preference to a cooperative with more possibility of inflow of money than an individual with no other financial ability, from the standpoint of lending money. Thus, Defendant 2 cannot be deemed to have selected a method of delivering cash or checks voluntarily, and the above method seems to have been requested by the Defendant).

③ The relationship between the Defendant and the Defendant 2 - It is difficult to view that at the time of receiving KRW 50 million as indicated in the judgment of the Defendant, a private trust relationship was created between Defendant 2 and Defendant 2 to borrow money of KRW 50 million as interest-free and security, and Defendant 2 seems to have complied with the Defendant’s demand under circumstances leading to continuous displeasure and pressure.

④ The Defendant’s loan necessity and possibility of borrowing from a person other than Defendant 2 – The Defendant alleged that he/she borrowed KRW 20 million from Defendant 2 on February 11, 2010 due to lack of funds for the cooperative operation (hereinafter “land substitution service contract”) but, at the time of February 11, 2010, deposited KRW 21,054,895 in the head of the cooperative bank as of February 11, 2010, and thereafter, the deposit balance was maintained from KRW 33,00 to KRW 35,00,000,000 in the Korea Cadastral Corporation only on February 23, 2010 (see the statement of ordinary deposits submitted by the Defendant on May 21, 2012), considering that the Defendant had the ability to borrow money from a person other than the Defendant’s union at the time of borrowing the opportunity to do so.

5. The amount and place of the loan - The defendant did not keep objective materials as to which he used the loan for any purpose, and the defendant did not make consistent statements with respect to the place of the loan as follows:

The Defendant, on February 11, 2010, used part of the statement (Evidence No. 5164 pages) at the fifth suspect examination (Evidence No. 5164 pages) - KRW 20 million on February 11, 2010 for personal debt repayment, KRW 10 million on March 18, 2010, for personal purpose, KRW 10 million on March 23, 2010 (c) as part of the attorney’s fee, for personal purpose, KRW 5 million on May 18, 2010 for personal expenses.

(C) The amount of KRW 20 million as of February 11, 201, which was submitted to the prosecution as of December 21, 201, was used as the attorney’s fee for the operation of the partnership, KRW 10 million as of March 23, 2010, and KRW 5 million as of May 18, 201, as of February 15, 201, for the payment of household expenses, debt repayment, etc., KRW 10 million as of March 18, 201, for the attorney’s fee and association activity expenses, KRW 10 million as of March 23, 2010 as of March 23, 201, and KRW 5 million as of May 18, 2010.

A written statement of May 21, 2012 submitted to the court of this Court, - KRW 20 million as of February 11, 2010, and KRW 10 million as of March 18, 2010, and KRW 10 million as of March 23, 2010, and KRW 5 million as of March 23, 2010, as of March 201, were used for the association’s operating fees and association’s operating expenses, and KRW 5 million as of May 18, 2010, to the association’s operating expenses, and KRW 5 million as of June 15, 2010.

④ Defendant 2’s economic situation and the size of the economic anticipated profit relating to the trust - Defendant 2 or Nonindicted Company 6 was in financial difficulties because of the instant association’s failure to receive the construction payment, and Defendant 2’s payment of the construction payment to Nonindicted Company 6 as expected by Defendant 2, if the Defendant paid the construction payment to Nonindicted Company 6, the financial difficulties between Nonindicted Company 6 and Defendant 2 could be somewhat resolved.

7) Whether to provide security - Even if a written confirmation of payment of loan and a notarial deed delivered by the Defendant to Defendant 2 on June 27, 2007, which was delivered on May 13, 2010, are offered as effective security, such amount (the maximum of KRW 100 million) is insufficient for the Defendant to cover the repayment of loan borrowed from Defendant 2 in 2008, and thus, the Defendant was not able to play a collateral for the above KRW 50 million, and no other security was provided for the above KRW 50 million.

8. Whether the term of reimbursement and interest have been agreed upon - Defendant 2 did not have an agreement on the term of payment and interest at the time of paying the instant money.

9. Whether the Defendant paid the principal and interest of the Defendant - The Defendant asserted that the said money was a borrowed loan, but has yet to pay the said money without indicating his intention to do so.

10. Defendant 2’s demand for payment - Defendant 2’s demand for payment - even though the amount that Defendant 2 paid to Defendant individual until August 19, 2010 reached KRW 194.5 million, Defendant 2 demanded payment - on August 19, 2010, the amount that Defendant borrowed exceeds KRW 140 million, which appears not to include KRW 50 million as indicated in the judgment. Thereafter, Defendant 2 demanded the Defendant to pay KRW 30 million out of KRW 50 million as indicated on June 17, 201, including KRW 50,000,000 as indicated on July 4, 201, which was urged to pay KRW 194.5 million, which was not settled.

C. Sub-decision

Therefore, the defendant and his defense counsel's assertion that the amount of KRW 50 million is not a bribe is without merit.

3. Regarding the acceptance of bribe

A. Summary of the defendant and his defense counsel's assertion

The defendant and his defense counsel asserted to the effect that the defendant lent the association operation expenses to the non-indicted 11 who was the adviser of the association of this case and asked him to lend the association operation expenses. Thus, the non-indicted 5's deposit of KRW 5 million to the non-indicted 11 was known only as the money lent by the non-indicted 11, and the above five million won from the non-indicted 5 did not receive it

B. Determination

1) As to the circumstance in which Nonindicted 5 remitted the amount of KRW 5 million as indicated in this Court’s ruling to the Defendant, Nonindicted 5 remitted the amount of KRW 5 million to the Defendant. Nonindicted 5, who entered into the instant association’s design contract for sewage treatment facilities, stated that the partners involved in the association were faced with considerable difficulties in operating the association, reduced the design cost of KRW 65 million from the first demand at the end of the negotiations, and that when the association’s operation is difficult, it would not be required for the head of the association to take personnel charge of the operating fund upon deposit of the down payment, and that it would not be difficult for the union to refuse the payment of the down payment from the point of beginning work, Nonindicted 5,00 won, which is 50,000 won determined by the union members to the Defendant. In light of the circumstances, Nonindicted 5, 200, 209 or 2010, 700,0000 won, which is 50,000 won (see, 70,0000 won).

Non-Indicted 5’s legal statement and statement at the prosecutor’s office are inconsistent with the person who made a statement to demand payment of KRW 5 million (whether or not the defendant was directly the defendant or other persons, including Non-Indicted 11), the place of receipt of such demand, and the circumstances in which the defendant’s account number was known. However, since Non-Indicted 5’s statement was made after a considerable period of time from the time when the defendant was remitted to the defendant ( June 5, 2008), there is a limit to completely examining his memory, and since the non-Indicted 5’s statement at the court and the prosecutor’s office are at a level to be acceptable, there is credibility in major parts).

2) Meanwhile, unlike Non-Indicted 5’s statement, Non-Indicted 11 arranged the design of the sewage treatment plant ordered by the instant association to Non-Indicted 5 on April 208, 208, and he stated that there is no money to be repaid to Non-Indicted 5 or Non-Indicted 5 at the coffee shop located in Seo-gu Daejeon at the time that he would be able to lend money to Non-Indicted 6, and that he would have lent 5 million won to Non-Indicted 5 by asking whether it is necessary for Non-Indicted 5 to lend 50,000 won. At that time, the Defendant borrowed 10 won from the witness to Non-Indicted 5, and the Defendant did not have paid the money again to Non-Indicted 5, but did not have paid the money to Non-Indicted 5. The Defendant did not have paid the money again to Non-Indicted 5, but did not have paid the money to Non-Indicted 5.

However, the above statements by Non-Indicted 11 of the witness are difficult to trust in the following respects:

① If Nonindicted 11 thought that the above five million won could be at issue in the year 2010, and the said five million won would have been repaid to Nonindicted 5, he would have to have paid the money in that case, but he would not have paid the money in fact, but he would have paid five million won to Nonindicted 5 on the day immediately before the arrest of the Defendant.

② In this court, Nonindicted 11 stated that “The witness was paid money to the Defendant, and thus, he was identified as having paid off the money to the Defendant.” However, the above statement is inconsistent with the prior statement that “the Defendant was in favor of the witness,” and even if the above statement was made, the Defendant would have received KRW 5 million from Nonindicted 5 to the witness and received KRW 5 million from Nonindicted 11, and thus, the Defendant would have received full reimbursement. Accordingly, the issue of returning KRW 5 million to Nonindicted 5 is merely the legal relations between Nonindicted 5 and Nonindicted 11, and the Defendant would no longer involve any further issue. Nevertheless, according to the above statement made by Nonindicted 11, the Defendant was asked to Nonindicted 11 twice as to whether he returned KRW 5 million to Nonindicted 5.5 million to Nonindicted 11, and this would not be understood.

③ Nonindicted 5 did not receive a loan certificate from Nonindicted 11 or the Defendant (in the testimony from Nonindicted 11, if Nonindicted 5 lent KRW 5 million to Nonindicted 11, not the Defendant, as the testimony from Nonindicted 11, then Nonindicted 5 did not transfer money to Nonindicted 11’s account, and thus, Nonindicted 11 should have kept a loan certificate even in preparation for the case where Nonindicted 11 did not pay the money in advance), and in particular, did not demand the return and demand the above five million won.

3) At the time when Nonindicted 5 delivered the above KRW 5 million to the Defendant, it was immediately after the instant association paid KRW 20 million to Nonindicted Company 10 with the design contract amount for the sewage treatment plant. Thus, it would have been presumed that Nonindicted 5 fully aware that the said money was given as a bribe.

C. Sub-decision

Therefore, the defendant and his defense counsel's assertion in this part is without merit.

1. Defendant 1

[Scope of Punishment] Imprisonment of 3 years to 6 months, 11 years, 5 million won to 137.5 million won

[Basic Crime] No. 1-b. C.

[Determination of Punishment] Types 4, 50 million won or more of the crime of acceptance of bribe or less than KRW 100 million among the crimes of bribery

[Special Person] Positive Demand

[Scope of Recommendation] Aggravated Punishment, 6 years to 8 years

【A person who is in general or has a high relevance to business

[Concurrent Crimes] Article 1-A of the Judgment

[Determination of Punishment] Type 2 (at least KRW 100 million, less than KRW 500 million) of the crime of embezzlement and breach of trust

[Scope of Recommendation] Basic Field, one year to three years

[General Persons] In the event of embezzlement

【Standards for Handling Multiple Crimes】

- Imprisonment of six to nine years ( = 8 years + 3 years + 1/2)

[Determination of Sentence] Four years of imprisonment, fine of KRW 110 million

In the instant crime, the Defendant, while holding office as the president of the partnership, received a bribe in connection with his duties and embezzled the funds of the partnership with the trust of a good number of members who expecting the Defendant to faithfully perform the business of the partnership for the benefit of the partnership. In addition, the Defendant, as a matter of course, failed to pay the construction cost, which is a partnership obligation to be paid as a matter of course, took the same attitude that the Defendant would demand the Defendant 2, who suffered from the financial difficulties, to pay the construction cost, and did not pay the construction cost even if he received a bribe from Defendant 2. It is not good that such crime is committed in that the Defendant 2, who was in an economic difficulties, has ever died.

In addition, considering that the amount received by the Defendant from Defendant 2 and Nonindicted 5 reaches KRW 5 million, and that the amount caused by the crime of embezzlement of this case has not yet been recovered, there is a need to strictly punish the Defendant.

However, although the defendant is deemed as a public official under Article 82 of the Urban Development Act and is subject to the application of bribery, considering the number of union members and the scale of business of the union of this case, assessing the act according to the same standard as the public official who served for the whole of the people seems to be harsh to the defendant, and the defendant is concurrently punished by a fine, etc., in light of all the sentencing conditions indicated in the argument of this case, the recommendation type according to the above sentencing guidelines is deemed to be too high, and thus, the punishment shall be determined as ordered

2. Defendant 2

[Scope of Punishment] Imprisonment with labor for not more than five years

[Determination of Type] 3 of the offering of a bribe among bribery crimes

[Special Mitigation] If the consignee complies with the affirmative demand;

[Scope of Recommendation] Reduction Area, one year to two years of imprisonment

[Determination of Sentence] One year of imprisonment and two years of suspended execution

In light of the circumstances favorable to the defendant, such as the fact that the defendant did not actively give a bribe, but the defendant did not refuse the request of the defendant 1 and gave a bribe when he was sealed due to economic difficulties because of the lack of settlement of construction cost from the association of this case, the court shall determine the punishment as ordered and suspend the execution of the sentence, taking into account all the sentencing conditions set forth in the arguments of this case and all other sentencing conditions set forth in the arguments of this case.

It is so decided as per Disposition for the above reasons.

Judges Ansan-Appellee (Presiding Judge)

(1) Defendant 1 voluntarily submitted to the police on March 8, 2010.

2) The Defendant alleged to the effect that the Defendant received KRW 1 million as the annual salary of the office-management directors, which was received as of September 21, 2007, from the written statement submitted to this court as of May 21, 2012 and May 23, 2012. However, despite the fact that the said KRW 1 million was stated not as “the amount of benefits accrued” but as “the amount of benefits” merely, there is no special ground to deem that he received it as the annual salary of the office-management directors ( insofar as the Defendant was found guilty in the entirety of this part as of May 21, 201, there is no difference in the conclusion as of the Defendant’s assertion).

Note 3) The Daejeon High Court 2005Kahap16 decided on the objection of provisional disposition is indicated as “Nonindicted 24,” but it appears to be a clerical error.

4) The Defendant alleged that he first held a board of directors on July 7, 2006 (Evidence No. 502 of the evidence record), but it was revealed that the date when the union first held the person in charge of its affairs on August 21, 2006, according to the use of the card presented by Nonindicted 8, the Defendant changed his assertion that it was only a retroactive preparation of the board of directors’ meeting minutes on July 7, 2006 on the grounds that the former president sent a letter of cooperation related to the transfer of affairs to the former president on July 12, 2006.

(5) Defendant 2’s defense counsel asserts to the effect that Defendant 2 requested the authentication of No. 2, which included KRW 50 million in the borrowed money as indicated in the above No. 2, the Defendant’s defense counsel held that Defendant 2 had been aware of the borrowed money amounting to KRW 50 million as indicated at the time of June 15, 2010. However, there is no evidence proving that the above No. 2-1 of the above evidence No. 2 was the document prepared by Defendant 2, and rather, Defendant 1 borrowed money (Evidence No. 2-3 of the above evidence No. 2), which is attached to the above evidence No. 2-1 of the above evidence No. 2, did not appear to have been mentioned to the effect that the above evidence No. 2 was “No. 6,000 won,” which was written on June 15, 2010, which was written on June 24, 2010.

6) The third protocol of interrogation of Defendant 2 by the prosecution is inadmissible as the prosecutor’s signature and seal is omitted (see Supreme Court Decision 2001Do4091, Sept. 28, 2001).

7) On February 8, 2012, immediately before the examination of the suspect prior to the detention of the accused, Nonindicted 5 prepared a written confirmation (Evidence No. 6009 pages) stating that “In response to Nonindicted 11’s request on June 5, 2008, Nonindicted 5 heard that it is difficult to conduct the association’s circumstances, and remitted KRW 5 million to the head of the association of June 5, 2008, Defendant 1’s head of the association. There is no time to note that the president of the association borrowed it, and the confirmation person would not pay it to the head of the bank if he was unaware of the payment.” However, Nonindicted 5 refused to use the phrase “I would not pay it to the prosecutor, but inserted it at the request of Nonindicted 11 adviser at the time, and submitted the written confirmation that it was difficult for the head of the association and the association to make it difficult for the association to smoothly deposit it into the account of Defendant 1 to make it difficult for the association’s head to do not reach a small amount of KRW 10 million.”