[1] The scope of “confidentials that public officials become aware of in the course of performing their duties” under Article 50(1) of the former Prevention of Corruption Act, and whether a detailed route plan constitutes “confidential” under the former Prevention of Corruption Act, if the specific route plan is not yet known to the public (affirmative)

[2] Criteria to determine whether a public official or a third party's "use of confidential information acquired during the process of acquiring real estate" constitutes "use of confidential information"

[3] The meaning of "where a person abandons his/her duties" as the elements for the establishment of a crime of abandonment of duties

[4] Whether a public official is subject to confiscation and collection under Article 50(3) of the former Anti-Corruption Act, in a case where a public official acquired property by using a secret known to him/her in the course of performing his/her duties, but it can be evaluated as being directly acquired by a public official under social norms (affirmative)

[5] The purpose and scope of necessary confiscation and collection under Article 50(3) of the former Anti-Corruption Act

[6] Whether the circumstance where the acquisition of property in confiscation and collection pursuant to the former Anti-Corruption Act affects the other party’s payment of compensation (negative), and whether the collection exceeds the benefit received from the acquisition of property, violates the constitutional guarantee of property rights and the principle of prohibition of excessive restriction (negative)

[1] [2] Article 50 (1) (see current Article 86 (1) of the Act on the Prevention of Corruption and the Establishment and Management of the Anti-Corruption and Civil Rights Commission) of the former Act (amended by Act No. 9989, Feb. 29, 2008) / [3] Article 122 of the Criminal Act / [4] Article 50 (1) and (3) (see current Article 86 (1) and (3)) of the former Act on the Prevention of Corruption and Civil Rights and Civil Rights Commission (amended by Act No. 9989, Feb. 29, 2008); Article 50 (3) (see current Article 86 (3) of the Act on the Establishment and Management of the Anti-Corruption and Civil Rights Commission) of the former Act (amended by Act No. 9989, Feb. 29, 200); Article 48 of the Criminal Act (see current Article 50 (3) of the Act on the Prevention of Corruption and Civil Rights and Civil Rights Commission)

[1] Supreme Court Decision 2002Do739 decided Dec. 26, 2003 (Gong2004Sang, 291) Supreme Court Decision 2006Do488 decided Nov. 9, 2006 (Gong2006Ha, 2125) / [2] Supreme Court Decision 2007Do7822 decided Jan. 31, 2008 / [3] Supreme Court Decision 96Do2753 decided Apr. 11, 1997 (Gong197Sang, 1510), Supreme Court Decision 95Do748 decided Apr. 22, 1997 (Gong1997Sang, 167No1675 decided Jul. 26, 2007) / [209Do30647 decided Apr. 26, 2007] Supreme Court Decision 2006Do3794 decided Jul. 12, 2007

Defendant

Defendant

Law Firm E.S., Attorneys Kim Tae-tae et al.

Suwon District Court Decision 2007No225 decided August 31, 2007

The appeal is dismissed.

The grounds of appeal are examined.

1. As to the ground of appeal on the violation of the Anti-Corruption Act

Article 50(1) of the former Anti-Corruption Act (repealed by Act No. 9989, Feb. 29, 2008; hereinafter “former Anti-Corruption Act”) provides that “a secret learned in the course of performing duties by a public official” refers to not only a confidential matter prescribed by the Act or subordinate statutes, but also a matter of substantial interest that is not known to the outside in terms of political, military, diplomatic, economic, and social needs, as well as a matter of fact that the government, public offices, or citizens are not exposed to the outside from an objective and general point of view. A road construction plan promoted by the State or local governments may cause complex problems such as consultation or compensation for purchasing the site if it is known in advance. Thus, from the standpoint of a public office promoting the construction of a road, there is a considerable benefit not to be known to the outside, and if a specific route plan is not yet known to the outside, the plan is deemed to have a substantial interest in the construction of a road and its own adjoining land from the standpoint of the Korean Supreme Court. 1.60 percent of the specific route construction plan.

In addition, whether a public official or a third party’s confidential information learned in the course of acquiring real estate should be determined by comprehensively taking into account all the circumstances such as the public official’s duties performed at the time of acquisition of the real estate, motive and circumstance leading up to the acquisition of the real estate, relationship between the public official and the person who acquired the real estate, relationship between the acquired real estate and the person who acquired the real estate, confidential information learned in the course of performing the duties of the person who acquired the real estate, the process of raising funds for the person who acquired the real estate, and the degree of increase in market price occurring after the acquisition of the real estate of this case (see Supreme Court

In light of the above legal principles and records, the court below accepted the judgment of the court of first instance and recognized the facts as stated in its decision, and determined that the "plan for the planned site for urbanization of the Dondo and the 2nd circulation road plan between South-do JT to YJT" and the "the 2nd circulation road plan between South-do JT" are information not disclosed to the public. If it is known in advance, it would cause a big confusion to the real estate trading market, make it difficult to implement the plan difficult, and cause complex problems in the course of consultation or compensation for the purchase of the site, and thus, it constitutes confidential information under Article 50 (1) of the former Anti-Corruption Act. However, the decision of the court below that the defendant, who had been employed by ○○○, etc. in the course of performing his duties, acquired the real estate of this case or had a third party acquire it by using the above plan that the defendant knew in the course of his duties, and there is no violation of law such as

2. As to the ground of appeal on the waiver of duty

Despite the specific duty to act, the crime of abandonment of duty is established when the duty to act is not performed under the awareness that the duty to act is neglected, and when the duty is deserted, it does not refer to all cases where the public official neglects the duty to act abstractly by the law, the rules, etc., and it is a case where the duty is likely to impair the function of the State and cause damage to the people, such as the unauthorized Desertion of the workplace, the waiver of duty, etc. (see, e.g., Supreme Court Decisions 95Do748, Apr. 22, 1997; 2006Do1391, Jul. 12, 2007).

In light of the above legal principles and records, the court below acknowledged the fact that the defendant, who was in charge of the permission duty, did not examine the requirements for permission in detail and issued the permission for extension of the goods storage period as applied on October 30, 2004, even though he knew that the non-indicted, who was close with the ○○ market and close to the defendant, would use the goods storage period extension application of this case as incidental facilities for aggregate production business, and recognized the fact that the defendant, who was in charge of the permission duty, did not review the requirements for permission in detail, etc., and did not grant the permission for extension of the goods storage period as applied. The court below held that the above defendant's act is a crime of neglect or abandonment of his duties with awareness of awareness, and there is no error

3. As to the ground of appeal on collection

In cases where a public official has acquired goods in his/her name using confidential information known to him/her in the course of performing his/her duties, and where the other person has acquired goods in his/her name as a private person or representative of a public official, or where it is possible to evaluate that other person has acquired goods as he/she has directly acquired goods by social norms, it shall not be deemed that the third person has acquired the goods (see, e.g., Supreme Court Decision 2003Do8077, Mar. 26, 2004). In such cases, if it is impossible to confiscate the goods acquired pursuant to Article 50(3) of the former Act on the Prevention of Corruption, the equivalent amount shall be collected from the above public official.

In addition, the purpose of the former Anti-Corruption Act is to prevent corruption and, at the same time, to contribute to the establishment of a clean climate and public service by efficiently regulating corruption (Article 1). The necessary confiscation or collection pursuant to Article 50(3) of the former Anti-Corruption Act is to deprive the criminal or a third party of the gains on the property or property acquired by the criminal or a third party who knows that it is well-known so that the criminal or the third party who knows that it would not retain unjust enrichment, and the value to be collected refers to the amount equivalent to the gains that the criminal or the third party would have lost if he or she had been declared to be confiscated.

Furthermore, even if the property acquired by the criminal act was paid in the course of acquiring the property, if confiscation is impossible, the equivalent value should be collected, and the remainder after deducting the amount paid in return for acquiring the property should not be collected (see Supreme Court Decision 2003Do4293, Jul. 15, 2005). As a result, even if the amount collected exceeds the profit actually received by the criminal as the acquisition of the property, it cannot be said that it violates the principle of guarantee of property rights under the Constitution and prohibition of excessive restriction.

In the same purport, the court below affirmed the judgment of the court of first instance that did not deduct the purchase price, etc. in calculating the market price of the land from the defendant as the additional collection amount, even though the defendant, who is a public official, purchased the land in the name of the defendant's wife, using the confidential information that the defendant knew in the course of performing his/her duties, and newly constructed the building on the ground. There is no error of law such as misunderstanding of legal principles as to

4. Conclusion

Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Young-ran (Presiding Justice)