Defendant 1 and three others

Preliminary (prosecution, public trial)

Law Firm Gangnam-gu et al. and six others

2015Gohap148, 162 (Joint), 176-1 (Joint), State 1) (Joint)

Defendant 1 shall be punished by imprisonment for three years and six months and by a fine of fifty thousand won, by imprisonment for each of the defendants 2 and 3, by imprisonment for one year, and by imprisonment for each of the defendants 4 (Defendant 2) for five years and a fine of 180,000,000.

In the event that Defendant 1 and Defendant 4 (Defendant 2) did not pay each of the above fines, the above Defendants shall be confined to Defendant 1, and KRW 200,000 for Defendant 4 (Defendant 2) and KRW 500,000 for Defendant 4 (Defendant 2) for each one day.

However, with respect to Defendant 3, the execution of the above sentence shall be suspended for two years from the date this judgment becomes final and conclusive.

The respective amount of KRW 50,000,000 from Defendant 1 and Defendant 2, and KRW 180,000 from Defendant 4 (Large-board: Defendant 2) shall be additionally collected.

Defendant 1, Defendant 2, and Defendant 4 (board: Defendant 2) order the provisional payment of an amount equivalent to the above fines and additional charges.

Of the facts charged against Defendant 1, the charge of violating the Act on the Aggravated Punishment, etc. of Specific Crimes (Bribery) due to the bribery amounting to KRW 100 million

“2015 Gohap148: Defendant 1, Defendant 2, and Defendant 3

Defendant 1, from May 29, 2010 to May 28, 2014, was an auditor of the ○○○ apartment reconstruction association located in the Busan Northern-gu ( Address 1 omitted), and has been in charge of the overall affairs of the association with Nonindicted 1, the president of the association. Defendant 2 was at the time, who was in charge of the affairs of receiving orders for reconstruction projects as the head of the headquarters in the Yong-nam local headquarters in the Young-gu, Busan. Defendant 3 was the head of the headquarters of the non-indicted 2 corporation (hereinafter referred to as “non-indicted 2 corporation”) who was the removal company located in the Busan-gu, Seo-gu, Busan (hereinafter referred to as “non-indicted 2 corporation”).

1. Defendant 1

On or around December 5, 2011, the Defendant received from Defendant 2 the cash amounting to KRW 50 million, which Defendant 3 provided to Defendant 2, under the pretext that Defendant 2 was selected as the removal company of the ○○○ apartment reconstruction project, near Defendant 2’s office located in the Busan Dong-dong hot spring, and Nonindicted Company 2 was designated as the removal company of the ○○○ apartment reconstruction project.

Accordingly, the defendant, who is deemed as a public official, received a bribe of KRW 50 million in cash from Defendant 3 in relation to his duties under the name of the removal company.

2. Defendant 2

(a) Violation of the Attorney-at-Law Act;

On October 7, 2011, the Defendant received KRW 50 million in cash from Defendant 3, who is deemed Defendant 3 and public officials, within the vehicle parked in the dedicated hotel parking lot located in the Changwon-si, Changwon-si, Changwon-si, and under the pretext of arranging the selection of the removal company between Defendant 3 and the above Defendant 1 who is deemed as the public official.

Accordingly, the defendant received 50 million won in cash from the defendant 3 under the pretext of arranging the affairs handled by the public officials.

(b) Acquisition of third-party brain;

피고인은 2011. 12. 5.경 부산 동래구 온천동에 있는 ◁◁호텔 지하 1층 술집에서, 피고인 3으로부터 피고인 1에게 철거업체 선정 명목으로 현금 5,000만 원을 전달해 달라는 부탁을 받고 현금 5,000만 원을 교부받아 피고인 1에게 전달하였다.

Accordingly, Defendant 3 received a bribe of KRW 50 million in cash from Defendant 3, knowing that Defendant 3 provided Defendant 1 with cash 50 million for the selection of the removal company.

3. Defendant 3

피고인은 2011. 10. 7.경 창원시 마산합포구 산호동에 있는 ◎◎◎호텔 주차장에 주차된 피고인의 차량 내에서, 피고인 1에게 공소외 2 회사의 철거업체 선정 명목으로 현금 1억 원을 공여하고, 2011. 12. 5.경 부산 동래구 온천동에 있는 ◁◁호텔 지하 1층 술집에서 같은 명목으로 피고인 2를 통해 피고인 1에게 현금 5,000만 원을 공여하였다.

As a result, Defendant 1, who is deemed a public official, provided a bribe of KRW 150 million in total for the selection of the removal company to Defendant 1 who is deemed a public official.

“2015 Gohap162: Defendant 2, Defendant 4 (Counter-board: Defendant 2)

Defendant 4 (Defendant 2) is a director of the Dolsan apartment reconstruction association located in the Changwon-si, Changwon-si from April 15, 2008 to May 3, 201, who has been in charge of the overall affairs of the association. Defendant 2 is a person who was in charge of the affairs of taking orders for reconstruction projects as the head of the headquarters in the Yong-nam local headquarters in Dolsan Construction at the time of the commencement of the reconstruction project.

1. Defendant 4 (Defendant 2);

피고인은 2008. 10. 중순경 부산 해운대구 좌동에 있는 장산역 부근 ▲▲▲▲ 커피숍 앞에서, □□□□□□아파트 재건축 공사의 시공사로 ◇◇건설을 선정해 준 명목으로 피고인 2로부터 현금 1억 1,000만 원을 교부받고, 2008. 12. 중순경 부산 수영구 광안리에 있는 상호불상 식당 앞에서, 같은 명목으로 피고인 2로부터 현금 4,000만 원을 교부받고, 계속해서 2009. 3. 하순경 창원 마산합포구 월영동에 있는 ♤♤대 부근 도로에서 같은 명목으로 피고인 2로부터 현금 3,000만 원을 교부받았다.

As a result, the defendant, who is deemed as a public official, received a bribe of KRW 180 million in total from Defendant 2 in relation to his duties under the pretext of selecting a contractor.

2. Defendant 2

피고인은 2008. 10. 중순경 부산 해운대구 좌동에 있는 장산역 부근 ▲▲▲▲ 커피숍 앞에서, □□□□□□아파트 재건축 공사의 시공사로 ◇◇건설을 선정해 준 명목으로 피고인 4(대판:피고인 2)에게 현금 1억 1,000만 원을 교부하고, 2008. 12. 중순경 부산 수영구 광안리에 있는 상호불상 식당 앞에서, 같은 명목으로 피고인 4(대판:피고인 2)에게 현금 4,000만 원을 교부하고, 계속해서 2009. 3. 하순경 창원 마산합포구 월영동에 있는 ♤♤대 부근 도로에서 같은 명목으로 피고인 4(대판:피고인 2)에게 현금 3,000만 원을 교부하였다.

As a result, the defendant, who is deemed as a public official, delivered a bribe of KRW 180 million in total to the defendant 4 (the defendant 2) who is deemed as a public official, for the selection of a trial work.

"2015 Gohap176": Defendant 3

1. Property in breach of trust;

(a) Basic facts;

공소외 6은 2007. 봄경부터 2010. 6.경까지는 공소외 7 주식회사(이하 ‘공소외 7 회사’라고 한다) ‘영남지사장’이라는 직함을 사용하고, 2010. 6.경 이후부터는 공소외 7 회사 ‘전무’라는 직함을 사용하면서 공소외 7 회사가 재건축조합 또는 재건축추진위원회와 정비사업전문관리업 용역계약을 체결하면 위 공소외 7 회사의 위임에 따라 정비사업전문관리업 용역계약이행에 대한 실무적 관리 업무 및 공소외 7 회사에서 재건축현장에 파견한 직원들에 대한 관리 업무를 담당하였다. 공소외 7 회사의 대표이사인 공소외 8(2009. 3. 25.경 공소외 7 회사의 대표이사로 취임하여 2012. 3. 25.경 퇴임)은 자신이 직접 창원시 성산구 (주소 2 생략) 소재 ‘♤♤2구역’ 재건축 사업과 관련하여 ‘♤♤2구역’ 재건축추진위원회에 대하여 영업을 하여 2007. 6. 13.경 위 추진위원회와 공소외 7 회사 간의 정비사업전문관리용역계약이 체결되었다.

(b) Criminal facts;

철거업체인 공소외 2 회사의 부산·경남 본부장인 피고인 3은 2009. 하반기경 공소외 6에게 ‘♤♤2구역’ 재건축사업에서 공소외 2 회사가 철거업체로 선정될 수 있도록 힘써달라는 부탁을 하였다.

재건축사업에서 철거업체선정은 경쟁입찰에 의해서 이루어져야 하나, 공소외 6이 ‘♤♤2구역’ 재건축 조합장 등 조합관계자들에게 공소외 2 회사가 철거업체로 선정될 수 있도록 유도하여 사실상 공소외 2 회사가 내정이 되었고, 결국 위 조합은 2010. 5. 29.경 공소외 2 회사와 철거용역계약을 체결하였다.

On December 2, 2011, the Defendant issued KRW 40 million in cash to Nonindicted 6 in return for the receipt of the said removal at the same time as “the same same park as the same place of origin, Seongdong-gu, Seongbuk-gu, Sungwon-si, Changwon-si.”

Accordingly, the Defendant made an illegal solicitation with respect to Nonindicted 6’s duties, and granted KRW 40 million in cash to said Nonindicted 6.

2. Bribery;

공소외 9는 2009. 12. 13.경 창원시 상남구 (주소 2 생략) 소재 ‘♤♤2구역’ 재건축 조합의 조합장으로 선출되어 조합을 대표하고 조합의 사무를 총괄하는 사람이다.

Around May 29, 2010, the foregoing cooperative entered into a contract for removal with Nonindicted Company 2, a removal company (a separate contract for service amount of KRW 2,537, 920,000, and value added tax).

위 공소외 9는 2011. 7.경 내지 8.경 사이에 창원시 성산구 중앙동에 있는 ‘◐◐◐◐◐ 호텔’ 중식당에서 피고인에게 “조합에서 기존 철거와 별도인 석면철거도 공소외 2 회사가 하도록 해주었긴 한데, 석면철거계약내용처럼 석면철거비용으로 평당 12,000원(약 1억 9,000만 원 상당)을 주기가 어려울 듯하다. 내게 평당 2,000원(약 3,300만 원 상당)을 주면 기존 계약 내용대로 진행할 수 있도록 해보겠다”라고 말하였고, 피고인은 “2,000만 원 정도 드릴테니 편의를 봐달라”라고 말하여 피고인은 위 공소외 9에게 석면철거와 관련된 추가계약에 대한 대가 2,000만 원을 주기로 위 공소외 9와 합의하였다.

From January 2012 to February 2012, the Defendant reported the above contents to Nonindicted 10, who is the representative director of Nonindicted Company 2, and from January 2012 to February 2012, Nonindicted 10 delivered cash of KRW 20 million to Nonindicted 5, who is the employee of Nonindicted Company 2’s Busan branch office, to Nonindicted 9. Nonindicted 5 delivered cash of KRW 20 million to Nonindicted 9. From January 2012 to February 2, 2012, Nonindicted 5 delivered cash of KRW 20 million to Nonindicted 9, who is the employee of Nonindicted Company 9, located in Seongbuk-gu, Changwon-si ( Address 3 omitted) under the name of “asbestos value.”

Accordingly, in collusion with Nonindicted 10 and Nonindicted 5, the Defendant offered a bribe to the said Nonindicted 9 who is deemed a public official.

[2015Gohap148]

1. Each legal statement of Defendant 1, Defendant 2, and Defendant 3

1. 수사보고(○○○○아파트재건축조합 등기부등본 등 첨부), 수사보고(부산만덕주공재건축 사업 경과), 수사보고(공소외 2 회사 법인등기부등본 첨부), 수사보고(차용증 원본 기록 첨부), 차용증 원본, 수사보고(확인증 원본 기록 첨부), 확인서 원본, 수사보고(마산 ◎◎◎호텔 현장 사진 첨부), 현장 사진 5부, 수사보고(부산 ◁◁호텔 현장 사진 첨부), 현장 사진 2부

【2015 Gohap162】

1. Each legal statement of the defendant 2 and the defendant 4 (board: the defendant 2);

1. Investigation report (Attachment to the copy of the register of the reconstruction association of △△ apartment), investigation report (including the progress of the reconstruction project in the last month of the last month), investigation report (Defendant 2's confirmation of service in △△△ Construction), investigation report (the details of withdrawal of cash on the present planning), and investigation report (the result of tracking the accounts related to

【2015 Gohap176】

1. Defendant 3’s legal statement

1. Each prosecutor's interrogation protocol on Nonindicted 5, Nonindicted 6, and Nonindicted 10

1. Some prosecutorial suspect interrogation protocol regarding Nonindicted 9

1. 등기부등본 5부, ♤♤2구역 재건축 조합 등기부등본, ♤♤2구역용역계약서, 철거계약서

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, and Article 84 of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (Concurrent Imposition of Fines pursuant to Article 2(2) of the Act on the Aggravated Punishment,

B. Defendant 2: Article 111(1) and (2) of the Attorney-at-Law Act (the receipt of money and valuables under the pretext of good offices, the choice of imprisonment), Article 133(2) and (1) of the Criminal Act, Article 129(1) of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents, Article 84 of the Act on the Maintenance and Improvement of Residents, Article 133(1) and Article 129(1) of the Criminal Act, Article 84 of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (the receipt of money and valuables under the pretext

C. Defendant 3: Articles 133(1) and 129(1) of the Criminal Act, Article 84 of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (the offering of a bribe to Defendant 1, inclusive, choice of imprisonment), Article 357(2) and (1) of the Criminal Act (the offering of a bribe to Defendant 1), Articles 133(1) and 129(1) of the Criminal Act, Articles 84 of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents, Article 30 of the Criminal Act (the offering of a bribe to Nonparty 9, the choice of imprisonment), Article 30 of the

(d) Defendant 4 (Defendant 2): Article 2(1)1 of the Act on the Aggravated Punishment, etc. of Specific Crimes, Article 129(1) of the Criminal Act, Article 84 of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (along with the fact of acceptance of bribe and a comprehensive charge of the fact of acceptance of bribe), and Article 84 of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions

1. Aggravation for concurrent crimes;

(a) Defendant 2: the former part of Article 37, Articles 38 (1) 2 and 50 of the Criminal Act (a)

(b) Defendant 3: the former part of Article 37, Article 38(1)2, and Article 50 of the Criminal Act (Aggravation of concurrent crimes with the punishment provided for in the crime of offering of a bribe to Defendant 1 with the largest punishment)

1. Discretionary mitigation;

Defendant 1 and Defendant 4 (Counter-board: Defendant 2): Each of the Articles 53, 55(1)3, and 6 of the Criminal Act (the consideration of favorable circumstances among the following reasons for sentencing)

1. Detention in a workhouse;

Defendant 1 and Defendant 4 (Defendant 2): Articles 70(1) and 69(2) of each Criminal Act

1. Suspension of execution;

Defendant 3: Article 62(1) of the Criminal Act (The following extenuating circumstances among the reasons for sentencing)

1. Additional collection:

(a) Defendants 1 and 4 (Defendant 2): The latter part of Article 134 of the Criminal Act;

(b) Defendant 2: the latter part of Article 116 of the Attorney-at-Law Act

1. Order of provisional payment;

Defendant 1, Defendant 2, and Defendant 4 (Defendant 2): Article 334(1) of the Criminal Procedure Act

1. Defendant 1

A. The assertion

Article 84-2 subparag. 1 and Article 11(5) of the Act on the Aggravated Punishment, etc. of Specific Crimes (hereinafter “Act on the Aggravated Punishment, etc.”) are newly established on February 1, 2012. With respect to the selection of a work executor, etc., ① providing, expressing an intention to provide, or promising to provide money, valuables, entertainment, or other property benefits, ② an act of receiving, or consenting to the offer of, money, valuables, entertainment, or other property benefits, shall be punished as “ imprisonment with labor for not more than five years or a fine not exceeding 50 million won” under Article 84 of the Act on the Aggravated Punishment, etc. of Specific Crimes (hereinafter “Aggravated Punishment, etc.”) and Article 2(1) of the Act on the Aggravated Punishment, etc. of Specific Crimes (hereinafter “Aggravated Punishment, etc.”) shall be punished as “an act of not constituting a new crime under Article 129(1) of the former Act or a fine not exceeding 50,000 won” under Article 15(2) of the Criminal Act.

B. Determination

Article 1(2) of the Criminal Act applies to cases where the evaluation of acts deemed a crime committed in the past according to the changes in the legal ideology that served as the ground for the enactment of penal statutes has changed and the punishment was unfair or where the act is recognized and punished as a crime is excessive (see Supreme Court Decision 97Do2682, Dec. 9, 1997, etc.). However, as the legal provision applicable to the defendant in this case, “Article 129(1) of the Criminal Act”, “Article 2(1) of the Specific Crimes Aggravated Punishment Act”, “Article 84 of the Urban Improvement Act” is not amended or abolished after December 5, 201, which is the date of the crime in this case, until the date of the crime in this case, and there is no room for the amendment or abolition of Article 84-2 subparag. 1 and Article 11(5) of the former Act, and there is no room for the amendment or abolition of Article 129(1) of the former Act as a defense counsel at the time of the enactment of the Act.

Meanwhile, even if “Article 129(1) of the Criminal Act”, “Article 2(1) of the Specific Crimes Aggravated Punishment Act” and “Article 84 of the Urban Improvement Act” are compared with “Article 84-2 subparag. 1 and Article 11(5) of the same Act, it is difficult to view that the crime of acceptance of bribe under Article 129(1) of the Criminal Act is subject to more unfavorable penal provisions for the same act as if the Defendant is subject to punishment for the same act, as seen below. It is difficult to view that the scope of “the act of acceptance of bribe” under Article 129(1) of the same Act does not require any special solicitation or unlawful act, and thus, it is difficult to view that there is a high level of number of officers to be subject to punishment for “the act of acceptance of money and valuables” under Article 129(2) of the same Act and “the act of acceptance of money and valuables as a public official,” and that there is no need to stipulate a specific provision for the act of acceptance of money and valuables under Article 20(3).

2. Defendant 2

A. Note 2) argument

1) Matters concerning violation of the Attorney-at-Law Act

The defendant, while keeping KRW 150 million upon the defendant 1's request, used only part of the amount of KRW 50 million for his/her own repayment of his/her obligation. Thus, there is no room to establish a crime of violation of the Attorney-at-Law Act because it does not fall under the case of receiving fees, etc. under the pretext of mediation

2) Regarding the crime of offering of bribe

The Defendant obtained approval from Nonindicted 12, 13, and 14, who is the commercial company of △△ Construction, and obtained approval from Nonindicted 12, 13, and 14, and △△ Construction did not only deliver a bribe that he/she intends to give to Defendant 4 (Defendant 2). As such, the Defendant should be subject to the application of the crime of acquisition of third-party brain (Article 133(2) of the Criminal Act) to the Defendant, instead of the crime of offering a bribe (Article

B. Determination

1) Determination on whether a violation of the Attorney-at-Law Act is established

In full view of the following circumstances acknowledged by the evidence duly adopted and investigated by this court, the defendant can sufficiently recognize the fact that he/she acquired money and valuables from Defendant 3 under the pretext of arranging the selection of the removal construction company handled by Defendant 1 who is deemed a public official. Thus, this part of the argument by the defendant and his/her defense counsel is without merit.

① 피고인 3은 검찰에서 조사를 받을 당시, ‘피고인이 자신에게 ♤♤2구역 재건축 현장에서 공소외 2 회사가 철거공사 수주를 받지 못할 수 있다는 이야기를 하면서 피고인 1이 조합의 감사로서 파워가 있으니 알아보라고 하여 피고인 1, 피고인을 함께 만났고, 그 자리에서 피고인이 2억 원 정도를 주는 것이 어떻겠냐고 제안하여 2011. 10. 7.경 피고인 1, 피고인에게 1억 5,000만 원을 먼저 전달하였고, 2011. 12. 초순경 피고인에게 5,000만 원을 전달하였다’는 취지로 진술하였던바, 피고인이 철거공사 업체 선정 사무에 관하여 알선행위를 한 사실은 분명하다.

② Defendant 3 appears to have sufficiently known the possibility that part of the money delivered to Defendant 1 and Defendant 1 (total amount of KRW 200 million) will be paid to Defendant 1 under the pretext of good offices (hereinafter “Investigation Records”) by accepting the remainder of KRW 50,000,000 from Defendant 1, and Defendant 1 stated to the effect that “the amount of money would not go against because he introduced Defendant 1 and intended to withdraw it.”

③ Defendant 1 made a statement to the effect that Defendant 3 merely borrowed KRW 150 million from Defendant 3 at the time of the first investigation at the prosecutor’s office, and that Defendant 1 was not related to Defendant 1. However, Defendant 1’s subsequent statement reversed and received KRW 150 million from Defendant 3 as the order for removal work from the place of order until this court was given up until this court, and Defendant received money at the rate of KRW 20 to 25%, thereby allowing Defendant to keep money at the same time after deducting KRW 50 million from Defendant’s share. In light of the above Defendant 1’s statement, it seems clear that Defendant acquired KRW 50 million under the pretext of mediation.

④ At the time of undergoing an investigation by the prosecution, the Defendant agreed with Defendant 3 and 1 to receive KRW 200 million in return for the order of removal work, and the Defendant’s phone to Defendant 3 and included the shares to be borne by Defendant 3 within KRW 200 million. In addition, Defendant 3 stated to the effect that “I will know about about about KRW 50,000,000,000, and will not be exempted from commission,” and that there was an agreement with Defendant 3 regarding the acquisition of money under the pretext of mediation (Article 347 of the Investigation Record). In addition, Defendant 1 and Defendant 3 were to receive KRW 150,000 from Defendant 3 and to receive KRW 50,000,000,000,000 from Defendant 1 and to receive KRW 305,000,000,000,000,000,000,000,00 won were to receive KRW 10,000.

2) Determination on whether the crime of offering of a bribe was established

The following circumstances acknowledged by the court legitimately adopted and investigated evidence: ① the Defendant directly asked Defendant 4 (Defendant 2) who was a director of △△ apartment reconstruction association to select △△△ as the contractor for △△ Construction; from September 2008, Defendant 4 (Defendant 2) paid a total of KRW 180 million in return; ② the Defendant instructed Nonindicted 15, who is an employee of the business team, to provide money to be paid to Defendant 4 (Defendant 2), and some of the money was delivered directly by the subcontractor (Article 306, 307 of the investigation records of 2015 and 162), ③ Defendant 4 (Defendant 2) was selected as the supervisor of the △△△△△ apartment reconstruction association; and Defendant 4 (Defendant 2) made a statement to Defendant 4 (Defendant 2), apart from the fact that he received money from his superior in the process of the above offering of bribe, and there is no reason to deem that the Defendant was given a bribe directly by his attorney.

1. The scope of punishment by law;

A. Defendant 1: Imprisonment between June and 15 years, fine of 50,000,000 won to 125,000,000 won

B. Defendant 2: Imprisonment for one month to seven years;

(c) Defendant 3: Imprisonment for one month to seven years;

(d) Defendant 4 (Counter-board: Imprisonment for 5 years to 15 years; fine of 180,000,000 to 450,000,000 won;

2. Application of the sentencing criteria;

A. Defendant 1

[Determination of Punishment] Bribery, Acceptance of Bribery, Type 4 (at least 50 million won, less than 100 million won)

[Special Aggravationd ] Aggravationd : No affirmative demand, mitigation element:

[Recommendation and Scope of Recommendation] Aggravation, 6 years to 8 years of imprisonment

B. Defendant 2

1) The crime of acquiring a third party brain and offering of a bribe

[Determination of Type] Bribery, Bribery, and Type 4 (at least KRW 100 million)

[Recommendation and Scope of Recommendation] Basic Field, Imprisonment of 2 years to 3 years and 6 months;

2) Violation of the Attorney-at-Law Act

[Determination of Punishment] Violation of the Attorney-at-Law Act, Acceptance of money and valuables under the pretext of solicitation and good offices, Type 3 (at least KRW 50 million, less than KRW 100 million)

[Recommendation and Scope of Recommendation] Basic Field, Imprisonment with prison labor from one year to two years and six months

3) Standards for handling multiple crimes: Imprisonment for 2 years and 6 months to 4 years and 9 months (=3 years and 6 months + 2 years and 6 months x 1/2)

C. Defendant 3

1) Each crime of offering of bribe

[Determination of Type] Bribery, Bribery, and Type 4 (at least KRW 100 million)

[Special Contributors] Reduction element: If the receiver complies with the affirmative demand of the receiver, there is no increase element:

[Recommendation and Scope of Recommendations] Reduction Area, 2 years to 3 years

2) Crimes of giving property in breach of trust

[Determination of Punishment] Offense of Receiving Property in Breach of Trust, Property in Breach of Trust, Property in Breach of Trust, Type 1 (less than KRW 50 million)

[Recommendation and Scope of Recommendations] Basic Field, Imprisonment of 4 months to 10 months

3) Standards for handling multiple crimes: Imprisonment with prison labor for two years to three years (=three years + 10 months + 1/2)

(d) Defendant 4 (Defendant 2)

[Determination of Punishment] Bribery, Acceptance of Bribery, Type 5 (at least KRW 100 million, less than KRW 500,000)

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

3. Determination of sentence;

(a) Defendant 1: Imprisonment for a period of three years and six months, a fine of fifty thousand won,00 won;

On the other hand, the Defendant, while engaging in the activities of the reconstruction association as an auditor, demanded large amount of KRW 50 million to the partner company and received it. The integrity and fairness of the reconstruction work has been considerably damaged due to the Defendant, which is bound to return to the majority of the members of the association and the general buyers, and thus, the Defendant’s liability is very heavy.

However, the Defendant recognized the instant crime and is in depth divided. While the Defendant, as an auditor of a reconstruction association, is in a position deemed a public official pursuant to Article 84 of the Act on the Improvement of Urban Areas and Dwelling Conditions for Residents, the degree of integrity in the duties required for him is not the same as that of a professional public official performing public duties. The Defendant has no record of punishment for the same crime, and there is no record of punishment exceeding the fine. Considering these circumstances favorable to the Defendant, the Defendant shall determine a punishment below the lower limit of the sentencing guidelines.

(b) Defendant 2: Imprisonment for one year;

A large amount of KRW 230,000,000,000, in which the Defendant delivered or provided a bribe. The Defendant acquired a large amount of KRW 50,000,000 as one’s own share by participating in an unfair transaction between an executive officer of a reconstruction association and a removal company. The integrity and fairness of reconstruction work was considerably damaged due to the Defendant, and the Defendant gained personal benefits through the aforementioned act. Therefore, the Defendant’s sentence of imprisonment for a certain period is inevitable.

However, the Defendant is recognized as a substitute for the instant crime and is divided. The Defendant is a primary offender who has no criminal history. The Defendant is administered with chronic alleymacy and urology, and is not good in health conditions. Considering these circumstances favorable to the Defendant, a punishment against the Defendant below the lower limit of the sentencing guidelines shall be determined.

(c) Defendant 3: One year of imprisonment and two years of suspended execution; and

The sum of the money that the Defendant provided as a bribe amounting to KRW 170 million and the amount of money raised in the course of making an illegal solicitation reaches KRW 40 million. The act of the said accused significantly undermined the fairness and integrity of reconstruction projects. The Defendant has the history of serving a fine on several occasions and of serving a suspended sentence of imprisonment. In light of these circumstances, the Defendant’s liability for the crime is not weak.

However, the Defendant appears to have given a bribe in response to Defendant 1 and Defendant 2’s proposal that he would give a bribe to Nonindicted Co. 2, who had paid considerable expenses to the reconstruction site of ○○○ apartment, in the absence of preservation. The Defendant was given a bribe upon Nonindicted Co. 2’s active demand for changing the asbestos value from Nonindicted Co. 9, and the Defendant was given a bribe to him, taking into account the fact that there was no record of punishment for the same kind of crime in favor of the Defendant, and determined a punishment below the lower limit of the sentencing guidelines in consideration of the circumstances favorable to the Defendant.

(d) Defendant 4 (Defendant 2): Imprisonment for a term of five years, a fine of 180,000,000 won;

The Defendant, while serving as a director of a reconstruction association, received large amounts of KRW 180,000,000 from the contractor. The Defendant significantly damaged the integrity and fairness of reconstruction work, which led to the damage of multiple members and general buyers, and thus, the Defendant’s criminal liability is very heavy.

However, the Defendant recognized the instant crime from the investigation process to the present court, and divided in depth. The Defendant, as an executive officer of a reconstruction association, received a bribe in a position deemed a public official pursuant to Article 84 of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents, but it is difficult to view that the degree of occupational integrity required for him/her is the same as that of a career public official performing official duties. The Defendant is a primary offender with no criminal record. Considering the above circumstances favorable to the Defendant, the Defendant shall determine a punishment below the lower limit of the sentencing guidelines.

E. Conclusion

In addition, the defendants' age, character and conduct, environment, circumstances surrounding crimes, and circumstances after crimes shall be determined as ordered in consideration of the various circumstances shown in the trial process of this case.

1. Summary of this part of the facts charged

On October 201, the Defendant, along with Nonindicted Party 1, conspiredd with the president of the partnership, to receive money and valuables from Nonindicted Company 2 as the removal company of the Busan ○○○ apartment reconstruction project. On October 7, 2011, the Defendant received KRW 100 million in cash from Defendant 3, under the pretext of selecting Nonindicted Company 2 as the removal company of the ○○○ apartment reconstruction project, within the vehicle of Defendant 3, parked in the dedicated hotel parking lot located in the Changwon-si, Changwon-si, Changwonwon-si, Changwon-si.

그 후 피고인은 2011. 11.경 부산 동래구 온천동에 있는 ▒▒▒ 커피숍 주차장에서 위 공소외 1에게 현금 1억 원을 교부하였다.

Accordingly, the defendant, who is deemed as a public official, in collusion with the above non-indicted 1, received a bribe of KRW 100 million in cash from the defendant 3 on the pretext of the selection of the removal company.

2. Determination

A. According to the statements made by the Defendant, Defendant 3, and Defendant 2 in the investigative agency and this court, and the statement made by the Defendant on October 7, 2011, it is recognized that the Defendant received KRW 100 million in cash from Defendant 3 to select Nonindicted Company 2 as the removal company around October 7, 2011.

B. However, in full view of the following circumstances recognized as a result of the instant trial, it is difficult to view that there was a proof to exclude a reasonable doubt as to “the Defendant conspireds to receive Nonindicted 1 and money,” among the facts charged, and “the Defendant delivered KRW 100 million to Nonindicted 1 on November 201, 201.”

1) The Defendant made a statement on this part of the facts charged several times in the prosecution investigation process of the instant case, and finally, made a statement to the effect that he received KRW 100 million in collusion with Nonindicted 1 and delivered it to Nonindicted 1. However, the Defendant made a statement to the effect that: (a) the Defendant was under investigation by the prosecution; (b) the Defendant made a statement almost every time when he was investigated by the prosecution; (c) the change in the contents of his statement is extremely high; (b) there is doubt about the credibility of his statement; (b) the Defendant thought that part of his suspicion of bribery may be transferred to Nonindicted 1, the head of the association, or drawn up Nonindicted 1 as his accomplice; and (c) there is sufficient motive to make a false statement to the effect that he would be subject to punishment against Nonindicted 1; (d) there is a possibility that he made a false statement (in other words, even if the Defendant’s statement was closely examined in the investigative agency and this court, there is no other reasonable motive or reason to reverse the Defendant’s statement; and (c) considering that the Defendant made a false statement between the prosecutor’s prosecutor’s statement.

2) 나아가, ① 공소외 1이 뇌물을 직접 받지 않고 피고인을 통하여 받을 만큼 피고인을 신뢰하였다고 볼만한 인적 관계나 동기 등의 정황이 전혀 보이지 않는 점, ② 조합 내에서 조합장인 공소외 1이 감사인 피고인보다 더욱 큰 권한을 행사하였을 것으로 보이기는 하나, 이러한 정황만으로 공소외 1이 피고인을 자신의 지배 하에 두었다고 보기 어려운 점, ③ 피고인 3과 피고인 2는 검찰에서 조사를 받을 당시 공통적으로 ‘피고인은 공소외 1이 ☆☆☆☆☆로부터 2억 원을 받은 비리가 있어 자신의 뜻대로 공소외 1을 조종할 수 있다’는 취지의 말을 하였다고 진술하였던 점 등에 비추어 보면, 피고인이 공소외 1의 ‘하수인’ 내지 ‘심부름꾼’과 같은 역할을 하였던 것으로는 보이지 않는바 피고인이 공소외 1을 위하여 1억 원을 받은 후 이를 전달하는 위험을 감수하였을 것이라고 쉽게 믿기 어렵다.

3) According to the statement made by Defendant 3 and Defendant 2 at the prosecutor’s office and this court, they were in mind of only the Defendant from the beginning of the solicitation for the order of the removal work, and even in the process of negotiating the order price received by the Defendant, Defendant 3, and Defendant 2, the president of the cooperative, the head of the cooperative, made a common statement to the effect that the statement about Nonindicted 1 was not made at all (i.e., “the statement that the Defendant sent part of the order price to Nonindicted 1 was not made” in this court (i.e., “the statement that the Defendant sent part of the order price to Nonindicted 1” was not considered as the object of the solicitation, and that considerable portion of the bribe was delivered to Nonindicted 1, who did not appear in the discussion regarding the solicitation, is not easily acceptable in light of the empirical rule.

4) Furthermore, when Defendant 3 received KRW 150 million from Defendant 3 as consideration, the Defendant entered himself as the borrower at Defendant 3’s request and made a signature on the loan certificate with Defendant 3 (the KRW 50 million acquired as consideration for Defendant 2’s good offices). If the Defendant was in the position to deliver the money of KRW 100 million among them to Nonindicted 1, it is reasonable to deem that he left the basis for document-based documents in any way as to the fact that KRW 100 million reverts to Nonindicted 1.

5) Meanwhile, with respect to the part of delivering KRW 100 million to Nonindicted 1, the Defendant appears to have delivered money to Nonindicted 1, but the Defendant’s statement on the place, time, method, etc. of delivery of money appears to have been specific; however, it is difficult to view that the Defendant’s statement was included in the characteristic information to the extent that it is believed that the Defendant actually experienced the work; ② whether the Defendant and Nonindicted 1, who had been naturally able to come from the office of a union due to usual business relations, need to keep a separate place; and even if there was a purpose to avoid the snow of the two members of a union or the dys of the dys of the dys of the union, it is difficult to view that it was reasonable to exclude the Defendant from delivering the dys of the union office and the dys of the dys of the union office and that it was difficult to view that the Defendant did not actually know whether the dys and the dys of the union office and the dys of the union office.

6) 또한, 피고인 3, 피고인 2의 진술에 의하여 인정되는 다음과 같은 사정 즉, ① 피고인은 피고인 3, 피고인 2를 만나 ‘자신이 철거공사를 수주하도록 해줄 수 있는 힘이 있다’는 취지로 말했을 뿐만 아니라, ☆☆☆☆☆나 ▽▽기업과의 철거공사 물량 배분 방법까지 구체적으로 제안하였던 점, ② 피고인은 피고인 3과 피고인 2를 만나 철거공사비 총액을 구체적으로 제시하면서 그 중 10%를 달라고 하는 등, 뇌물의 전체적 액수까지 직접 정하려 하였던 점, ③ 피고인은 피고인 3으로부터 받기로 한 2억 원 중 나중에 받기로 한 5,000만 원의 지급을 피고인 3에게 독촉하면서, ‘돈을 주지 않을 경우 철거공사를 수주해주지 않겠다’는 취지의 말을 하기도 하였던 점 등을 종합하여 볼 때, 피고인이 피고인 3으로부터 받아 피고인 2에게 보관시켰다가 다시 돌려받은 1억 원을 공소외 1에게 전달하지 않고 스스로 사용하였을 가능성도 충분히 있어 보인다.

3. Conclusion

Thus, this part of the facts charged constitutes a case where there is no proof of crime, and thus, is acquitted under the latter part of Article 325 of the Criminal Procedure Act.

[Attachment, in a case where facts constituting a crime that is included in the indictment within the scope of identity of the facts charged are acknowledged, if it is deemed that there is no concern about actual disadvantage to the defendant’s exercise of his/her right to defense in light of the progress of the trial, the court may, ex officio, recognize facts constituting a crime different from those stated in the indictment (see Supreme Court Decision 2014Do9315, Oct. 15, 2014, etc.). In this case, the prosecutor instituted a public prosecution to the effect that “the defendant was given KRW 100,000 to Defendant on October 7, 201,” but, on August 17, 2015, the prosecutor conspireds the defendant to receive money and valuables from Nonindicted 1 and delivered them to Nonindicted 1 ex officio, which constitutes a bribe of KRW 100,000,000,000,000,000,0000,000,000).

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

Judges Governing the misuse of judges (Presiding Judge) et al.

Note 1) Defendant 3, who was co-defendant 2015 Gohap176 case, was separated from the pertinent case and joined this case (as to 2015 Gohap176 case, the judgment was rendered by this court on November 12, 2015).

2) Although the Defendant and his defense counsel stated to the effect that all the facts charged are recognized during the instant trial process, the summary of the pleadings submitted on November 18, 2015 after the closure of the pleadings in the instant case is disputing the establishment of a crime, and thus, they are examined.