2016No2893 A. Violation of the Act on the Aggravated Punishment, etc. of Specific Crimes

(b) Violation of the Act on Regulation and Punishment of Criminal Proceeds Concealment.

(c) Name of the crime of changing the offer of a bribe: Teacher;

D. Abuse of authority and obstruction of exercise of rights

(e) Act on the Prevention of Corruption and the Establishment and Operation of the Anti-Corruption and Civil Rights Commission;

violation of applicable rate

F. Acceptance of bribe

G. Violation of the Political Funds Act

1.(a)(c) A;

2. D. e. (f) B

Defendants and Prosecutor (Defendant A)

Song Ho-ho (Public Prosecution), Kim Jong-ho (Public prosecution, public trial)

Attorney DL, DM, and DN (for Defendant A),

Law Firm DO (Defendant B)

Attorney in charge DP, DP, Q, DR

Suwon District Court Decision 2015 Gohap631, 2016 Gohap126 (Joint) decided September 2, 2016;

2016 Highis128 (Joint), 2016 Highis129 (Joint), 2016 Highis3(Joint), 2016 Highis3(Joint) Decisions

March 23, 2017

The part of the judgment of the court below against the Defendants is reversed. Defendant A shall be punished by imprisonment with prison labor for two years, and Defendant B shall be punished by a fine for 10,000,000 won. Where Defendant B fails to pay the above fine, the above Defendant shall be confined in a workhouse for the period calculated by converting KRW 100,000 into one day.

The amount of KRW 200,00,000 shall be collected from Defendant A, and KRW 7,071,037 shall be collected from Defendant B, respectively. The order of provisional payment equivalent to the above fine and surcharge is issued. Of the facts charged against Defendant A, the violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (Aggravated Punishment, etc.) was committed on November 201, 2012; the offering of a bribe teacher; the abuse of authority and obstruction of exercise of rights among the facts charged against Defendant B; the violation of the Act on the Prevention of Corruption and Anti-Corruption and Civil Rights Commission

The summary of the judgment of not guilty portion against the Defendants shall be publicly notified.

1. Summary of grounds for appeal;

A. Defendant B

1) misunderstanding of facts as to abuse of authority and obstruction of another’s exercise of rights

The Defendant received a request from AL to the effect that the LPG charging site may be colored, and there was no fact that the Defendant instructed Q, the leader of the Green Area Permission Team, Q, to find out a site where the LPG charging station can be permitted. The lower court acknowledged this part of the charges against the Defendant on the basis of the following: (a) the statement of AL with high possibility of false statements in hostile relations with the Defendant; and (b) Qu and D’s statement seeking to take responsibility for the Defendant in order to relieve their criminal responsibility; and (c) the evidence without credibility.

Even if the Defendant instructed Q Q Q to color the site of the LPG charging station, physical coloring the site meeting the requirements for the installation of the LPG charging station is an act included in the Defendant’s authority and authority, and the Defendant’s order to find the site of the LPG charging station was merely having Q Q to do a factual act assisting the Defendant in performing his/her duties as above, and thus does not constitute having Q Q to perform a non-obligatory act.

In sum, the lower court found the Defendant guilty of this part of the charges, which erred by misapprehending the legal doctrine, or by misapprehending the conclusion of the judgment.

2) misunderstanding of facts and misapprehension of legal principles as to the violation of the Act on Prevention of Corruption and Establishment and Operation of Civil Rights Commission

The Defendant was entirely aware of the fact that QG charging station site (hereinafter referred to as “UG charging station site”) was searched on three parcels, including AG, and therefore, there was no fact that QG charging station business was found in U-dong site while providing A with information about U-dong site. Moreover, information about U-dong site does not have considerable benefits to not be disclosed from the objective and general perspective, and it does not constitute confidential information that the Defendant came to know in the course of performing his/her duties.

The judgment of the court below which convicted the defendant of this part of the charges on the basis of each statement of Q and D without credibility is erroneous by misapprehending the facts or by misapprehending the legal principles, which affected the conclusion of the judgment.

3) misunderstanding of facts and misapprehension of legal principles as to the acceptance of bribe

As stated in this part of the facts charged, the Defendant did not receive a bribe by receiving KRW 20 million from D as attorney fees. Even if the Defendant received KRW 20 million as above, it is irrelevant to the Defendant’s duties as a MM market.

The judgment of the court below that found the defendant guilty of this part of the facts charged is erroneous by misunderstanding the facts of the judgment of evidence or by misapprehending the relevant legal principles, which affected the conclusion of the judgment.

4) Unreasonable sentencing

The punishment sentenced by the court below against the defendant (2 years of imprisonment with prison labor for the crime No. 2-A of 2016 Gohap1294 decided in the original judgment, 2016 Gohap129 decided in the original judgment, 2-2-b and 3-2 of the 2016 Gohap129 decided in the original judgment, and 2-4 months of imprisonment and 40,000 won of fine for the crime of 2016 Gohap313) are too unreasonable.

B. Defendant A

1) misunderstanding of facts as to the violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (Mediation) due to the receipt of money and valuables under public official entrustment

The Defendant did not receive a request for Q and T promotion from D, and in return, did not receive KRW 20 million. The judgment of the court below convicting the Defendant of this part of the facts charged is erroneous in misunderstanding of facts.

2) misunderstanding of facts as to the offering of bribe

The defendant has not instigated D to give a bribe by having D pay attorney fees. The judgment of the court below which found the guilty of this part of the facts charged is erroneous in the misunderstanding of facts.

3) Unreasonable sentencing

The punishment sentenced by the court below against the defendant (two years of imprisonment) is too unreasonable. The prosecutor's improper sentencing against the defendant A: the prosecutor.

The sentence imposed by the court below against Defendant A is too uncomfortable.

2. Determination

[Summarys: Unless there is evidence of probative value to the extent that there is no room for reasonable doubt in criminal trials, proof of criminal facts is insufficient.

3. The Majority Opinion argues that the Majority Opinion’s conclusion that the Defendant’s testimony was insufficient to prove that the Defendant’s testimony was insufficient to prove that the Defendant had no doubt, and that there was no doubt as to whether to accept money or valuables, and that there was no doubt as to whether to give or receive money or valuables should be consistent, reasonable, and that there was no possibility of affecting the interests, such as the donor’s human nature, and the benefit or liability that the donor obtained or exempted from the statement. In the event that the objective circumstance, which makes it difficult to believe considerable portion of the statement, is so bad that the overall credibility of the statement was modified, it is difficult to acknowledge the fact-finding on the ground of partial statement. In accordance with such principle, it is difficult to find that there was no doubt as to whether to give or receive money or valuables, based on the presumption of innocence under the Constitution and the principle of free evaluation of evidence, and that determination of innocence is based on the principle of free evaluation of evidence established in a fact-finding court based on an objective principle of 201, 201.

The main issue in this case is: ① the part of the facts charged against Defendant B disputing the establishment of a crime in terms of fact-finding; ② the physical color of the site for filling the Udong LPG at the request of Q Q for its permission; ② whether the public official in charge abused his authority by ordering Q for its permission on April 17, 201; ② whether the AL has renounced its implementation of filling the U-dong site; ② whether the aforementioned part of the facts charged is objectively contradictory to the aforementioned facts charged, ③ whether the aforementioned facts charged should be found to be insufficient to acknowledge credibility and credibility of the evidence, ③ whether it is objectively contradictory to the aforementioned facts charged, and whether it is objectively contradictory to the aforementioned facts charged, ③ whether it is objectively contradictory to the evidence of the Defendant’s testimony and evidence, and whether it is objectively contradictory to the aforementioned facts charged.

① As to the crime, there is no objective evidence to acknowledge the Defendant’s direct involvement in the crime in relation to this part of the facts charged. However, in light of the overall review of evidence including evidence investigation conducted in the trial by Q and D and criminal evidence related to the above facts, it is difficult to find the Defendant guilty of the facts charged because it is difficult to view that there is no reasonable doubt as to the credibility of the testimony throughout the whole process, including the lack of consistency in the statement and inconsistency between the statement, objective facts and circumstances, as well as mitigation of liability of the Defendant. Furthermore, it is difficult to find the Defendant guilty of the facts charged because it is difficult to view that there is a lack of direct involvement in the process of obtaining permission from the public official in charge of Q and Q and Q as well as the process of obtaining permission from the public official in charge of public officials in accordance with the law, such as ensuring new sites for permission and the overall process of obtaining permission from the public official in charge of Q and Q in accordance with the law.

Ultimately, there is insufficient evidence and proof as to each of the above facts charged at issue except for the violation of the Political Funds Act, in which there is evidence of confession and evidence of guilt exist. Nevertheless, there is evidence to view that the Defendant was guilty of having committed a tort contrary to the market’s official duties, such as the crime of violating the Political Funds Act. Furthermore, as the Defendant’s relative relation to each of the above facts charged was involved in the crime on the grounds of friendship with the Defendant and distributed illegal profits as a member of the group, it seems that there is sufficient room for deliberation that the performance of the Defendant’s ordinary correction duties, including the instant charging permission, including the instant case, would have failed to doubt the involvement of the Defendant. Accordingly, the political, moral liability of the Defendant should be borne by the Defendant, and if the fact that the Defendant was involved in the criminal act that was not prosecuted even at all times, it should be proven that there is lack of evidence and liability. However, as long as evidence and liability corresponding to the sentencing guidelines are proven, the Defendant should be found guilty.

A. As to the assertion of misconception of facts and misapprehension of legal principles as to the part of ordering Q Q to color the LPG charging site among the abuse of official authority and obstruction of use against Defendant B

1) The judgment of the court below on this part

원심은 그 판시의 증거들을 종합하여 인정한 다음과 같은 사실 및 사정들, 즉 ① 중앙정부에서 충전소 배치를 검토하라는 지시도 없었고, M시에서 충전소를 추가로 배치할 필요성에 대하여 검토한 사실도 없었던 상황에서 M시 녹지허가팀장이었던 Q은 부하직원인 T과 함께 2011. 11.경부터 2012. 4. ~ 5.경까지 M시 개발제한구역 내에 LPG 충전소 설치허가가 가능한 부지가 있는지 물색하여 U동 부지를 찾은 후 이를 시장인 피고인에게 보고하였고, 그 후 행정소송 등을 거쳐 U동 부지에 대한 허가가 이루어질 때까지 수시로 쪽지보고 형식으로 진행경과 등을 피고인에게 보고한 점, ② Q은 2011. 10.~11.경 피고인이 충전소 설치허가가 가능한 부지를 알아보라고 지시하여 위와 같이 U동 부지를 찾아내어 피고인에게 보고하였고, 그 과정에서 당시 도의원이었던 AL가 피고인과 상의된 것이라면서 진행과정을 확인한 사실이 있고, 위와 같이 피고인에게 보고한 후 얼마 지나지 않아 D이 피고인과 협의된 사항이라면서 U동 부지에 충전소 설치허가를 받을 수 있는지 충전소 설치허가를 받을 수 있는지 확인하였다고 진술한 점, ③ AL 또한 AR가 LPG 충전소나 주유소 부지를 알아봐 달라고 부탁하여 피고인에게 이를 다시 부탁하였고, Q에게도 충전소 부지를 알아보고 있는지 물어본 사실이 있으며, Q이 적당한 부지가 나왔다고 하면서 U동 부지를 알려주었다고 진술한 점, ④ AR도 2011. 10.경 AL에게 위와 같이 LPG 충전소 또는 주유소 부지를 알아봐 달라고 부탁하였고, 이에 AL가 피고인이 해 준다고 했으니 기다려보라고 하였는데, 5~6개 월 정도 후에 AL가 U동 부지를 알려주었다고 진술한 점, ⑤ 또한 Q은 U동 부지를 찾아낸 후 피고인에게 보고하기 이전에 AL에게 이를 먼저 알려주었는데, 피고인이 그 사실을 알고는 화를 내었고, AL 역시 그 무렵 Q으로부터 Q이 위와 같은 이유로 피고인으로부터 질책을 받았다는 말을 들었다고 진술한 점 등을 종합하여, AL는 AR의 부탁을 받고 피고인에게 LPG 충전소 설치허가를 받을 수 있는 부지를 알아봐 달라고 부탁하였고, 이에 피고인은 녹지허가팀장인 Q에게 LPG 충전소 설치허가가 가능한 부지를 물색할 것을 지시하였으며, 이에 따라 Q은 U동 부지를 찾아내어 2012. 4.~5.경 피고인에게 이를 보고하였다고 인정하였다. 그리고 위와 같은 Q과 AL의 각 진술은, ①은 제3회 검찰조사 이후로는 원심 법정에 이르기까지 피고인으로부터 지시를 받아 U동 부지를 찾아내었다는 진술 취지를 유지하면서 그 과정 및 보고 경위를 구체적이고 일관되게 진술하고, 그와 같은 내용이 Q이 피고인에게 직접 보고할 때 작성한 쪽지보고서에 의하여 뒷받침되는 점, ② AL 역시 수사기관 및 원심 법정에 이르기까지 피고인에게 LPG 충전소 설치허가가 가능한 부지를 알아봐달라고 부탁한 경위 및 과정에 대하여 구체적이고 일관되게 진술하는 점, ③ AL가 피고인에게 위와 같이 부탁하였다.는 2011. 10.경에는 여전히 피고인과의 친분관계를 유지하고 있었던 것으로 보이는 점, ④ AL가 피고인과 반목하는 사이였다면 승진에 대한 열망이 강한 Q이 시장인 피고인과 대립하고 있던 AL의 부탁을 들어주지 않았을 것으로 보이는 점, ⑤ 인사권자인 피고인의 지시가 없었다면 Q이 부하직원까지 동원하여 수개월에 걸쳐 충전소 설치허가가 가능한 부지를 찾아낼 이유가 없고, 충전소 설치허가를 받기 위해서는 피고인의 결재가 필요하여 Q과 AL가 피고인 모르게 일을 진행하는 것은 처음부터 불가능하고, 피고인이 Q으로부터 U동 부지를 찾아낸 사실을 보고받은 이후에도 Q으로부터 허가절차에 관한 지속적인 쪽지보고를 받아온 점 등에 비추어 Q이나 AL의 진술에 신빙성이 있다고 판단하였다.

2) Determination of the immediate deliberation

In full view of the following circumstances acknowledged by the lower court and the first instance court comprehensively based on the evidence duly admitted and examined, it is difficult to believe Q’s statement that corresponds to the facts charged in this part. The AL’s statement is not direct evidence of the facts charged in the above case, which contains unfair business instructions between the Defendant and Q. In addition, part of the facts charged indirectly conform to the AL’s statement is difficult to recognize probative value and credibility to the extent that it is based on conviction in light of the objective situation contradictory thereto, the inconsistency between AR and Q’s statement related thereto, and the political interests contrary to the Defendant, etc., and it is difficult to find any other evidence to prove the facts charged in this part. Nevertheless, the lower court erred by misapprehending the facts or by misapprehending the legal doctrine.

① At the prosecutor’s office and the lower court’s court’s court in 2011, AL requested the Defendant to find out whether there was a site for the permit for the LPG charging station, after receiving the request from AR, which is a double in-depth relationship between B and B, and requested the Defendant to find out whether there was a site for the permit for the LPG charging station. After checking Q, Q made a statement to the effect that Q was in physical coloring the site for the LPG charging station at the Defendant’s request at the time of the first investigation conducted two times. Moreover, Q made a statement that Q was in physical coloring upon D at the time of the first investigation conducted by the prosecutor’s office, but at the time of the third investigation, it changed the statement that the Defendant received the direction from the Defendant to the physical color of the LPG charging station charging station site and maintained such statement at the lower court thereafter. However, comprehensively taking account of the following circumstances, each of the testimony made between AL and Q

AL has served as the chief of the Defendant’s office from July 2002 to April 2006. However, the Defendant went out from the fourth M market to the DS around 2006, and went out from the 5th election of the public-private partnership, and was elected in the 5th election of the public-private partnership, around 2010. AL continued to be a party member of the DU party and continued to be a party member of the DU party. AL was elected around 2010. Furthermore, around 201, the Defendant was elected by going out the election of the Gyeonggi-do Council member under the jurisdiction of the DU party.

The AL appears to be close to the next M market (AR was prepared at the court below's request by the witness to enter the next M market; "At the local election in 2010, the defendant was elected to the market and the defendant was left to the next M market before and after the time when the AL was elected to the Do Council member (CL)," and stated that "Y was aware that there was a fact that the defendant prepared to leave the next M market at the time of his request by the defendant as above at the time when the witness was elected to the market and the AL was elected to the Do Council member (U.S. District Court 2016Da129, 313 (Joint Trial Records of this case) 672, 681)." (The CX also stated to the same purport at the court below (1263 pages of the combined trial records).

(Consolidated Public Trial Records 698 pages) If so, it is reasonable to view that the defendant was well aware of the intent of the above AL as well, and further, according to the AL’s statement, the defendant started to stand at the next M market and at any time, the defendant was aware of the intention of the AL as a competitive relationship (Evidence Records 1932 pages). If the AL, which is different from the defendant and party members, was sent to the next M market, then the defendant was already aware of the AL as a competitive relationship at any time.

It is difficult to believe that the AL made an unreasonable solicitation to the effect that not only the permission to charge a specific individual, but also the relevant site itself used viewing administrative power on a natural premise in relation to the permission to charge a specific individual in relation to the LPG charging station which suffered a large interest in light of the relationship between such two parties and the situation at the time, or that the Defendant received it.

There are circumstances to deem that Q1 requested Q2 to do so, rather than requesting the color of the LPG charging site at the time of requesting the Defendant. In other words, AL stated that Q1 did not directly request Q2 to do so, as to the reason that Q1 did not request Q1, it was not likely to request Q1, but that Q2 requested the Defendant to do so (Evidence 1934 pages). However, at the lower court’s trial, AL knew that “the Defendant was working as the head of the Defendant’s office, and was working as a member of the Do Council, etc., and it was not possible for Q1 to find out that Q1 was not a new site for Q2 at the time of the request of the lower court for entry into a new trial (the date of the trial record 697 pages) and that Q1 was not a new site for which Q2 was charged to Q2, but it was not a new site for which Q2 was charged to Q1, and that Q1 was not a new site for which Q2 was charged to Q2.

In order to promote Q to Grade V, at least three years and six months must be employed as public officials of Grade V, and in addition, the period required to promote Q to Grade VI public officials of Grade V, including Q, was 11 and 9 months average, but Q was promoted to Grade V on May 28, 2010 (the fact-finding reply to this court's MU). Considering such circumstances, Q is difficult to eliminate the possibility that Q would have complied with its request by awareness of the relationship with AL which Q was prepared to the end of the next M market, as it is difficult to expect the possibility of promotion during the remaining term of office of the defendant.

If the AL requested the Defendant to color the LPG charging site, and Q did not separately request it, it is natural to directly hear the results of the LPG charging site from the Defendant. On the other hand, it is not natural to directly listen to Q even if Q requested to do so.

In addition, Q is the common sense to first report to the defendant, not AL, if Q as the market owner's order. However, according to the AL and Q's statement, the AL stated that the U-dong site from Q was suitable for the LPG charging site, and that there was no other statement from the defendant (Evidence No. 1941, concurrent trial records No. 704-706), and Q also notified the AL prior to reporting to the defendant as to the U-dong site (Evidence No. 1942, concurrent trial records No. 726).

② In addition, although Q Q from the above words that the UPG charging site was suitable for the LPG charging site, it is difficult to understand that QPG charging site was not directly made to the Defendant and that it was delivered to the Defendant through C through the Defendant’s secretary who was the Defendant’s secretary (Evidence No. 1946 pages, joint trial records 706,707 pages). However, even if the Defendant, who was the market owner of the LPG charging site with a very large economic interest upon his request, sent the intent to waive the LPG charging project in an indirect manner, such as the above, on the ground that the UPG charging site was not economically feasible, it is ordinarily difficult to accept that the Defendant, who was the Plaintiff’s market owner at the request of the lower court, delivered the PPG charging site with the above indirect method, and expressed that such solicitation was not directly made between the Defendant and the Defendant and the Defendant, even if having presented the aforementioned intent to waive the APG charging project in the above form of a specific and more than 7).

① As above, AL renounced LPG charging business in Udong site. From April to May 5, 2012, the Defendant instructed AL and CXD to participate in the implementation of LPG charging business in Udong site. However, this is inconsistent with QPG charging business after the waiver of AL’s Udong site. The Defendant’s statement that QL and D were inconsistent with the Defendant’s statement that BL would have prepared for the next MP market withdrawal on April 5, 2012, and it seems difficult to recognize the credibility of the Defendant’s statement that the Defendant had been given to the Defendant at the time of the lower court’s 10-6-6-6-6-6-2-6-2-1-6-2-2-2-2-2-2-2-2-2-2-3-2-3-2-3-2-3-2-3-2-2-3-2-3-2-3-3-2-3-3-2-3-3-3-3-2-3-2-3-3-2-2-3-3-3-2-3-3-2-3-3-3-3-2-2-3-2-3-3-3-2-2-2-3-3-3-3-2-3-3-2-3-3-

U동 부지 물색 경위에 관한 Q의 진술은 쉽게 믿기 어렵다. Q은 검찰에서 "피고인으로부터 LPG 충전소 부지의 물색을 지시를 받은 후 5~6개월에 걸쳐 LPG 충전소 부지를 물색하여 U동 부지를 찾아내었다."라고 하면서, 그와 같이 시간이 오래 걸린 이유에 대하여, "M시 면적의 80%가 개발제한구역으로 지정되어 있어서 검토해야 할 범위가 넓었고, 그 중 기존 충전소와 5km 이상 떨어져 있고 조례에서 정한 시설물 안전거리 등의 요건을 충족하는 땅을 찾기 쉽지 않았다. 이를 위하여 국토해양부도 2 ~3회 이상 출장을 다녀왔다."고 진술하였고(증거기록 2292, 2293쪽), 원심에서도 이와 같이 어렵게 U동 부지를 찾아내었다는 취지로 진술하였다(병합 공판기록 724쪽). 그러나 Q의 지시를 받아 LPG 충전소 부지를 물색하는 일을 하였던 T은 검찰에서, "충전소 부지를 찾는 데 5~6개월 소요된 것이 맞고, 국도, 지방도의 거리 간격을 잘못 해석한 것이 아닌지 확인하기 위하여 3, 4회 국토해양부에 출장간 것도 맞다."고 하면서도, 사실은 Q으로부터 충전소 부지 물색을 지시받은 후에도 다른 업무도 많고 부당한 지시라는 생각에 그 업무를 방치하였는데, 2~3개월 후에 Q이 재촉하여 다시 부지 물색을 시작하였다"는 취지로 진술하였고(증거기록 2478쪽), 원심에서는 "충전소 부지를 찾는데 5~6개월이나 걸리지 않는다. 기존 배치계획 수립해서 나간 LPG 충전소를 지도상에 표시해 보면 이격거리가 다 나오기 때문에 단순히 며칠 정도밖에 걸리지 않는다. 오래 걸린 것은 내가 묵혀 놓았던 부분이 있고, 국토해양부에 문의하는 시간이 있었다. 나중에는 다 찾았는데 Q이 보류하고 있으라고 해서 묵혀 놓은 부분이 있다."고 진술하였다(병합 공판기록 1087, 1088쪽). 나아가 LPG가스 유통업 등 관련 업계에서 오래 종사하였다는 당심 증인 BH은 LPG 충전소 허가가 가능한 부지를 찾는 일을 찾는 일은 교통량 조사를 제외하고는 관계 법령에 따른 요건 등을 검토하는 데에 2시간 정도면 충분하다고 진술하였다. 한편 Q 스스로도 원심에서 U동 부지를 찾는 데 5~6개월이나 걸린 이유를 추궁하는 피고인의 변호인의 신문에, "솔직히 말씀드리면 충전소는 하기 싫었다. 시장님이 지시했기 때문에 몇 번 가고 또 가고 했지, 그래서 찾는 것은 얼마 안 되어서 찾았는데, 보고를 늦게 했다."고 진술하였다. 2011년 가을경부터 2012. 5.경 사이에 객관적으로 확인되는 Q의 국토해양부 출장기록도 2012. 2. 21.자 출장 1회만이 존재하고, 그조차 그 출장 목적이 '업무협의 차'라고만 되어 있어서 LPG 충전소 부지 물색과 관련한 것이었는지 여부는 확인이 되지 않는다(증거기록 1961쪽). 이와 같은 Q의 전체 진술의 내용 및 위 객관적인 사정들을 종합해 보면, 이 점에 관한 Q의 진술 중 상당 부분은 허위임을 알 수 있고, 그 결과 진술의 전체적인 신빙성은 인정하기 어렵다고 봄이 상당한데, 이러한 허위 내지 상호 모순된 진술은 결국 U동 부지의 물색 경위가 피고인의 지시에 의한 것임을 강변함으로써 자신의 책임을 부인, 감경하기 위한 것이라는 설명이 가능하다.

더구나 T은 시장인 피고인의 지시에 따른 것이라는 사실을 Q으로부터 들어서 잘 알고 있었다는 것임에도 부지물색 지시를 받은 후 2~3개월 동안이나 이를 방치하고 있었다는 것이고, Q 역시 얼마 지나지 않아 U동 부지를 찾았음에도 이를 일부러 피고인에게 보고하지 않고 보류하고 있었다는 것인데, Q의 진술과 같이 피고인이 LPG 충전소 부지 물색을 지시한 것이라면, 지방자치단체 공무원으로서 특히나 승진에 대한 열망이 강하였다고 주장하는 Q이나 T이 시장인 피고인의 지시사항 처리 및 보고를 일부러 지연하고 있었다는 것은 쉽게 이해하기 어렵다. 오히려 이는 Q이 피고인이 아닌 AL 또는 자신의 상급자가 아닌 다른 사람으로부터 부탁을 받거나 독자적으로 U동 부지를 찾아낸 후 사적인 이익을 도모하고자 그 정보를 제공하거나 이를 이용할 시기와 기회를 저울질하고 있었던 것이 아닌가 하는 의심을 불러일으킨다.O AR의 진술에 따르면, AR는 AL에게 LPG 충전소 배치계획 고시가 가능한 구간을 알아봐 달라고 부탁한 사실이 있는데, 그 후 Y동(DW동 라인)에 소재한 토지에 허가가 가능한지 AL에게 물어보았더니 AL는 녹지허가팀장인 Q에게 물어보자고 하였고, 이에 AL와 함께 Q을 만났더니, Q은 BN동 부지2)와 Y동 부지3) 및 U동 부지 세 군데를 이야기하면서 BN동 부지와 Y동 부지는 이미 임자가 있고, U동 부지만이 가능하므로 선택하라는 식으로 이야기하면서 "시장은 선출직이지만 나는 영원하다."는 말을 하였다고 진술하였다(병합 공판기록 680쪽). 이는 Q이 각종 이권의 대상인 관내 LPG 충전소 신규 허가 부지 및 그 사업자 선정과 관련하여 시장인 피고인과 무관하게 독자적인 이해관계 하에서 해당 작업 및 절차 진행을 주도, 추진해 왔고, AL도 Q의 그러한 입장 및 담당 실무 책임자로서의 권한을 중시하여 그에게 허가 관련 청탁을 하였을 가능성을 반증한다. 한편 BH은 당심에서 2011. 10.경 BN동 부지 매매계약 당시 U동 부지에 관하여도 LPG 충전소 허가 가능 여부를 검토한 바 있는데, 이를 D에게 말해 주었다고 진술하였고(BH 당심 증인신문녹취록 16, 17쪽), Z은 원심에서 "D이 BW에게 Y동 부지에서의 LPG 충전소 사업을 제안하였다가 BW가 포기하자 자신에게 위 사업을 제안하여 Y동 부지를 2012. 3.~4.경 매수하게 되었다."고 진술하였다(공판기록 287쪽), 나아가 D은 원심이나 당심에서 BW, Z에게 Y동 부지에 관한 LPG 충전소 사업을 제안한 바 있고, Y동 부지는 Q으로부터 소개받았다고 진술하였다(공판기록 168쪽, D 당심 증인신문독 취록 31, 32쪽). 이러한 AR, BH, Z, D의 각 진술 및 뒤에서 보는 바와 같이 Q이 D과 결탁하여 부정한 이익을 취하여 온 것으로 의심하기에 충분한 정황 등에 비추어 보면, Q은 BN동 부지, U동 부지, Y동 부지 등 자신의 직무상 지득한 LPG 충전소나 주유소 부지에 관한 정보를 이용하여 사적인 이익을 취해온 것이 아닌지 의심이 되고, 그러한 이상 Q은 피고인의 지시와 무관하게 U동 부지를 비롯한 LPG 충전소 부지를 이미 물색하고 있었을 가능성을 배제하기 어렵다. 이처럼 당심에서 추가로 이루어진 증거조사를 통해서 더욱 분명히 밝혀진 바에 의하더라도 Q으로서는 시장인 피고인의 지시 여부와 무관하게 이미 자신 및 D의 이익 도모 차원에서 관내 LPG 충전소 신규 부지 전반에 대한 조사, 검토를 마친 상태였다고 볼 충분한 근거가 있으므로,4 이와 일부 배치되고 그 자신의 진술 내용조차 일관성 없이 상호 모순된 Q 진술의 전체적인 신빙성은 도저히 인정하기 어려워 이를 유죄의 증거로 삼을 수는 없다고 본다.

7) In light of the above circumstances, there is a lot of motive for Q to avoid punishment by aiding D, etc. in connection with the permission to charge charge charge charge charge charge charge charge charge charge charge charge charge charge charge charge charge charge charge charge charge charge charge charge charge charge charge charge charge charge charge charge charge charge charge charge charge charge charge charge charge charge charge charge charge charge charge charge charge charge charge charge charge charge charge charge charge charge charge charge charge charge charge charge charge charge charge charge charge charge charge charge charge charge charge charge charge charge charge charge charge charge charge charge charge charge charge charge charge charge charge charge charge charge charge charge charge charge

② At around October 201, AR asked AL to find out the section where the plan for filling stations or gas stations in a development-restricted zone can be planned within the development-restricted zone, and thereafter, the AL made a statement that “it would be known to BL due to the request from the B Mayor.” (The steam records 2513 pages, 675 pages of the AR trial records). However, even according to the AR’s statement, it is merely known from AL that AL requested the Defendant to set up a site for filling stations, and as seen earlier, AR moved from Q. The Defendant’s statement alone is insufficient to recognize the fact that the Defendant directed the LPG filling site.

Rather, as seen above, the first request for a AL is not to find out a site that can be permitted for a specific LPG charging station, but to find out a section that can be notified of the LPG charging placement plan, and there was no request from the market owner and the defendant, which was not necessarily changed. AL requested the defendant to find a specific LPG charging site, and Q made a statement that Q was only confirmed as to whether the site for a specific LPG charging station was colored. On the other hand, Q made a statement that QL requested the AL to find a site for a specific LPG charging station, unlike the statement of AL, in the process of filing and transmitting the first civil petition agenda.

In full view of the fact that there seems to have been considerable misunderstanding, exaggeration, and distortions, AR listens to Q through Q or Q with respect to U-dong sites, and the relationship between the former AL and the defendant, unlike the AL’s statement, AL merely received a request from AR to the effect that it is possible to find out the sections where the LPG charging arrangement plan may be established, and in this regard, it is merely a presentation of the defendant’s opinion at the level of general civil petition filing that is not premised on a specific person’s preferential solicitation. In fact, AR requested Q to directly use the physical color of the LPG charging site, but it is difficult to avoid the possibility of talking to the defendant by exaggerationing the defendant’s request for the physical color of the LPG charging site.

③ Q statements to the effect that during the process from the time when an application for the construction permit of the LPG charging station was filed to the time the construction permit was granted, the Defendant has been making a face-to-face report in the form of so-called “to-face report.”

However, it is difficult to recognize the overall credibility of QG charging station’s statement as seen earlier. Moreover, among what appears to be the report of Q2, submitted as evidence in relation to the permission for construction of the above UPG charging station in the U-dong site, only one report containing the future treatment plan for the application for construction permit of the U-dong site prepared as of November 1, 2013 (Evidence No. 3427 pages), and there is no objective evidence as to the Defendant’s report regarding the application for permission for construction permit of the U-dong site from time to time. Even if the Defendant received the above report on the U-dong site as above, it is difficult to conclude that the Defendant prepared the report as to the 20-dong site’s application for permission for construction permit of the U-dong site from time to time, as well as the fact that the Defendant prepared the report on the 20-dong site prior to the commencement of the application for construction permit of the 20-dong site as evidence for correction of the 27-dong site’s construction report.

④ As seen earlier, it is difficult to view Q Q as taking a big effort and time to find the Udong site. Even if Q had Q to find the site for the LPG charging station according to Q’s instructions, in light of the fact that Q and Q were in a position to perform the duties according to Q’s instructions, and Q were in a position to make a request for personnel promotion, etc. through Q and Q through D. According to D and Q’s statements, it cannot be ruled out that Q had Q directed Q Q to do the physical color of the LPG charging station site on the ground that Q would be the direction of the Defendant, a market for convenience by receiving another person’s request from other than the Defendant or by other private motive. Thus, it is difficult to deem that Q had Q to find the site for the LPG charging station.

⑤ The fact that A received KRW 100 million from D around the beginning of December 2013 in relation to the LPG charging business on the U-dong site is recognized. However, there is no evidence that even some of the above KRW 100 million has been delivered to the Defendant, and there is no evidence that the Defendant acquired any benefit in relation to the above LPG charging business.

B. As to the assertion of misconception of facts and misapprehension of legal principles as to the part that caused V to acquire property using information on Udong sites, among the violation of the Act on Prevention of Corruption and the Establishment and Operation of the Anti-Corruption and Civil Rights Commission against Defendant B

1) The judgment of the court below on this part

In light of the circumstances acknowledged by the lower court based on the evidence as indicated in its holding, ① the Defendant was aware of the fact that the UV site was located at the time from April to May of 2012 and offered to purchase the UV site by informing the Defendant of the fact that the UV site was located at the time of using the UV’s request for permission for the use of the relevant UV site. On June 22, 2012, V purchased the UV site at KRW 2.33 billion. On June 29, 2012, the Defendant was aware of the fact that the UV site was located within the MV-based development zone, and the Defendant was aware of the fact that the UV-related UV site was located at the time of the use of the relevant UV-based land to obtain permission for the use of the relevant UV-based land for the use of the relevant UV-based land for the use of the relevant UV-based land for the use of the land for the use of the UV-based land for the use of the land for the use of the land.

2) Determination of the immediate deliberation

Q and D stated to the effect that "D requested Q to use the site where the right to charge charge can be permitted, Q would have known Q as U.S. site. Since Q would have thereafter, D would have to purchase U.S. site through the administrative litigation method5, Q would have lost the market price at the time of rejection of the first application for construction permit in order to obtain LPG charging building permit through the public prosecutor's office (D's 6th statement, Q would be able to pass well with the internal approval on the return of the above construction permit, upon request from the defendant who is the market through A, and it was difficult to find out that Q would not be misunderstanding that Q would have lawfully obtained information on the building site, but it was hard to find out that Q would have otherwise found that Q would have obtained any possibility of being found out the changed facts from the public prosecutor's evidence."

① Around April 2012 to May 5, Q reported the fact that the Defendant sought UPG charging site to the Defendant, according to the administrative litigation method, the Defendant was able to grant permission to those who wish to do not compete. Accordingly, upon D’s request, the Defendant was insufficient to have stated the reason for return in the form of form so that MPG charging site can be lost at the market price in the lawsuit seeking revocation of the construction permit return. In practice, the reason for return of the application for the construction permit for the LPG charging site in the actual U-dong site includes only the reason that the LPG charging site plan was not established, and the reason that the construction, expansion, or significant increase in the traffic volume was not anticipated (71 pages of the additional evidence record). This reason for return was the most important factor that should be considered as a matter of course in accordance with the relevant laws and regulations and purport of the public announcement of the construction permit for U-dong site. Moreover, in the actual U-dong site, it was difficult to see that the area of the MPG building site was located in 20 or 25m zone.

(Evidence No. 4, No. 48, No. 49) of the submission of counsel, which eventually seems to be easy to lose in the administrative litigation against it, and the reason for the return will be written formally.

In fact, after the MPG charging business was finally lost in the above administrative litigation, according to the intention of D and Q on February 27, 2014, the AI, which borrowed the name of V, was designated as the LPG charging business operator of Udong site, and on September 2, 2014, the permission for the construction of the LPG charging station was issued in the AI future.

그러나 위와 같이 행정소송 방식에 따라 D과 Q이 의도한 사업자 앞으로 LPG 충전소 건축허가가 이루어졌다는 사정만으로 그 과정에 시장인 피고인이 개입하였다고 보기 어렵다. 즉, LPG 충전소 건축허가와 관련하여 구체적으로 고려할 사정이나 관련 법령 등은 Q과 같은 이를 직접 담당하는 실무자가 가장 잘 알고 있을 것이고, 선거에 의하여 선출된 시장인 피고인이 이를 알았다고 볼 만한 객관적인 증거나 정황이 없고, 이는 행정소송 방식으로 법령상 까다로운 규제를 피해 쉽게 허가를 취득하는 것이 새롭게 고안된 수법이라는 점에서 보더라도 그러하다. LPG 충전소 건축허가신청 반려처분은 시장의 직접 결재 사항이 아닐 뿐 아니라(도시건설국장 또는 부시장의 전결사항인 것으로 보인다) 그에 대한 행정소송 및 최종적인 건축허가까지의 과정에서 피고인에게 그 진행상황이 보고되었다고 하더라도 시장인 피고인으로서는 이를 행정소송에, 대응하는 일상적인 과정으로 여겼을 여지가 많고, 건축허가를 내어주는 과정에서도 법원의 판결에 따라 처리하여야 하는 행정절차로 이해하였을 것으로 보인다. LPG가스 유통업체인 SK네트웍스에서 오랜 기간 LPG 충전소 허가 등에 관한 실무를 담당하였다.는 당심 증인 BH은 "행정소송 방식으로 할 경우에는 담당실무자와 소송을 하는 것이므로 시장이 관여하지 않더라도 허가를 받을 수 있는 것으로 안다."고 진술하였고(BH에 대한 증인신문녹취록 3쪽, 36쪽), Q 스스로도 원심에서 "불허가를 하면 행정소송을 할 것인데, 행정소송에서 그 사람이 이기면 허가를 내줘야 하기 때문에 시장은 전혀 관여할 수가 없지요."라는 질문에 "그런 경우는 그렇습니다."라고 답하였고, "행정소송으로 이 사건을 해결하려면 시장의 관여 없이도 가능한가요."라는 질문에, "예"라고 답 하였으며(병합 공판기록 759쪽), D조차 당심에서 그와 같이 진술하였다(당심 증인신문녹취록 94쪽). 오히려 위와 같은 행정소송에 의한 방식은 일반적인 절차에 따라 LPG 충전소 배치계획을 고시하고 사업자 지정신청을 받아 LPG 충전소 허가를 내어주는 방식에 비하여 시장을 비롯한 내부 결재권자 등의 개입을 최소화한 채로 LPG 충전소 사업을 희망하는 사람이 내부의 실무 담당 공무원과 결탁하여 다른 사람의 경쟁을 배제하고 LPG 충전소 허가를 받을 수 있는 수단으로 이용될 여지가 많은 것으로 보인다.8) ② Q은 검찰 및 원심 법정에서 "D에게 행정소송에서 쉽게 이길 수 있도록 도와줄 수는 있지만 대신 시장인 피고인에게 부탁하여 내부 결재가 잘 이루어질 수 있도록 힘을 써달라고 하였다."는 취지로 진술하였고(증거기록 902, 1223, 1224쪽, 병합 공판기록 771쪽), D 역시 검찰에서부터 당심 법정에 이르기까지 "Q이 건축허가 진행 과정에서 과장이나 국장 등의 눈치가 보이는 시장한테 손을 써 달라고 하여 A으로 하여금 피고인에게 U동 부지에 대한 건축허가 신청이 들어오면 엄격하게 판단하지 말고 실무자들이 기안하는 내용이 통과될 수 있도록 해 달라고 부탁하였다."는 취지로 진술하였다(증거기록 813, 870, 938, 1590쪽, 공판기록 802쪽, 당심 증인신문녹취록 25, 26쪽). 그 진술의 객관적 의미는, 행정소송 방식을 통한 허가 취득은 Q과 D의 주관 하에 진행함을 전제로, 혹시 내부적인 결재 등 과정에서 문제가 생기면 시장에게 청탁하여 이를 해결하는 사후 보완적인 역할을 A이 맡아 하는 것으로 이해되고, 이는 객관적 사실, 즉 수령한 금품의 분배 내역을 보더라도 그러하다. 이러한 점에 비추어 "D이 부탁한 것은 행정소송 방식으로 일을 진행함에 있어서 중간에 일이 잘못되면 그때 시장인 피고인에게 부탁하여 원만히 처리해 달라는 취지였다. 즉 일종의 보험 성격이었다."는 취지의 A의 진술이 보다 사리에 부합하여 신빙성이 있다고 보인다(증거기록 1406, 1407쪽). 그와 달리 당초 피고인이 A으로 하여금 U동 부지에 관한 정보를 제공하면서 그에 관한 사업자 물색을 지시한 것이라면 Q과 D 입장에서 굳이 행정소송 과정에서 내부 결재가 잘 이루어지지 않을 것을 걱정하여 이를 A을 통하여 피고인에게 미리 부탁하여 달라고 하였다는 것은 선뜻 납득하기 어렵다. 더구나 D은 검찰 및 원심 법정에서 "A이 2012. 4. ~ 5.경 피고인으로부터 충전소 허가가 가능한 부지를 받았다고 하면서, 자신은 인·허가 절차를 담당할 테니, 나한테는 자금을 투자할 사업자를 찾아서 같이 동업을 하자고 제안했다."는 취지로 진술하였는데(증거기록 1587쪽, 병합 공판기록 800쪽), 처음부터 D이 A으로부터 이와 같은 말을 들었다면, D로서는 내부 결재는 A이 알아서 처리하도록 그대로 맡겨 두면 그만이었던 것으로 보인다. 설령 D이 Q에게 U동 부지가 LPG 충전소 부지에 적합한지 여부를 다시 확인하는 과정에서 Q으로부터 내부 결재에 대하여 걱정하는 말을 들었다고 하더라도 D은 A에게 들은 대로 A이 이를 처리하여 주기로 하였다고 말하면 그만이고 새삼스럽게 A에게 피고인에게 내부결재를 부탁하여 달라고 다시 말할 필요는 없었을 것으로 보인다.

③ In fact, there is no evidence to acknowledge that QB had exercised any influence against the construction director or the Director of Urban Construction Bureau, who was the superior of Q2, in the process of the construction permission for the U-dong site. Of course, it is recognized that Q Q2 passed the approval as it is. However, in light of the specific circumstances regarding the LPG charging station construction permit or the relevant laws and regulations seems to be the most well-known person rather than the superior approval, and the return of the construction permit is not a disposition actively granted to the superior approval, and as such, it is difficult to readily conclude that the head of the construction division or the Director of Urban Construction Bureau obtained approval of the above formal reasons under the direction of the defendant. Rather, in the case of the BG site, it is difficult to conclude that the head of the construction division or the Director of Urban Construction Bureau did not have received any instruction from the defendant in relation to the construction permit for the construction permit for the new construction site, and that Q2G’s return of the construction permit for the new construction permit for the new construction site was not made at the time of the cancellation of the construction permit for the new construction permit for the new construction permit.

④ D은 BN동 및 U동 부지의 LPG 충전소 등 허가 절차 진행 과정에서 Q과 내통하여 그의 주관 하에 각종 편의를 제공받고 그 대가로 뇌물을 제공하거나 제공하기로 약 속하는 등 상호 공통의 이해관계 하에 지속적이고 부적절한 유착관계를 형성하여 온 것으로 의심하기에 충분한 각종 진술 및 객관적인 정황이 기록상 나타나는 반면, 그 과정에서 시장인 피고인의 관여 사실을 인정할 만한 객관적인 증거는 없으며, 오히려 지방자치단체 시장으로서 각종 인사권 및 허가권을 장악한 피고인이 개입하였더라면 선뜻 이해하기 힘든 그와 모순된 객관적인 정황이 다수 존재할 뿐이다. 즉, D은 U동 부지에 관한 LPG 충전소 허가건과 관련하여, "Q으로부터 EC이 운영하는 DD 건축사무소에 용역대금 5,000만 원의 건축허가 대행 용역계약을 체결하라는 지시를 받고 DD 건축사무소와 그와 같은 용역계약을 체결하였다. 이는 Q이 업무편의를 봐 주기로 하면서 직접 대가를 받기가 부담스러우므로 자신이 밀어주는 업체를 통하려 리베이트를 받겠다는 것이었다. U동 건 건축허가대행 용역계약의 경우 경험상 1,500만 원 정도가 적정한 용역대금이다."는 취지로 검찰에서 여러 차례 진술하였다(증기기록 548~550쪽, 813쪽, 938쪽). 또한 Q의 진술에 의하면 EC은 M시청 건축과에서 근무한 Q의 동료 공무원의 처였고(수원지방법원 2016고합631 등 사건 공판기록9) 131쪽), Q은 주식회사 BZ을 운영하는 BY과 위 EC 등이 공장증축허가를 내어 달라고 부탁하여 2011. 8.경 이를 들어 주었으며(증거기록 1234, 1235쪽), 위 BY이 부탁하여 개발제한구역 내에 목욕장 건축허가를 내어 준 사실이 있는데, 당시 역시 EC이 운영하는 DD건 축사무소에서 설계 등 허가를 대행하였다는 것인바(증거기록 1241쪽), 이에 비추어 Q과 EC은 밀접한 관계가 있었던 것으로 보인다. 또한 D은 Y동 부지의 LPG 충전소 및 주유소 허가와 관련하여, Q이 ED 건축사무소를 지정해 주어 5,000만 원의 용역계약을 체결하였고, DY동 어린이집 허가와 관련하여 역시 Q의 지시에 따라 ED 건축사무소와 2,000만 원의 용역계약을 체결하였으며, 그 후 위 DY동 어린이집 허가신청이 취하된 후 같은 땅에 농기계 창고 허가신청이 이루어졌을 때에도 Q의 지시에 따라 ED 건축사 무소와 3,000만 원의 용역계약을 체결하였다고 진술하였다(증거기록 816, 817쪽). 나아가 당심 증인 V의 진술에 따르면 2011. 7.경 D의 소개에 의하여 BN동 부지에 LPG 충전소 허가신청을 하기 위하여 위 BN동 부지를 매수할 당시 D이 Q에게 부탁하여 LPG 충전소 허가를 받아주겠다고 말하였다는 것이고, 그 무렵 D이 Q을 데리고 나와 함께 만났을 때 BN동 부지와 관련하여 LPG 충전소 허가를 내 주겠다고 한 사실이 있으며, 그 후 BN동 부지의 매매계약이 해제된 후 D이 그 매매대금 등을 반환하는 대신 U동 부지에 LPG 충전소 허가를 내 주겠다고 하면서 당시에도 Q에게 부탁하여 허가를 받아주겠다고 하였고, D이 그 대가로 11억 원을 달라고 하여 그러한 내용의 지불각서 10)를 써 주었는데, 그 후 U동 부지의 LPG 충전소 허가가 나기 전에 D을 한 커피숍에서 만났을 때 D이 위와 같이 약속한 돈을 미리 달라고 요구하였고, 그 자리에 Q이 같이 나온 사실이 있다는 것이다(D 역시 당심에서 V에게 LPG 충전소 허가가 나기 이전에 미리 돈을 달라고 요구한 사실은 인정하지 않지만 위와 같이 커피숍에서 Q과 함께 V를 만난 사실은 인정한다). 그리고 당심 증인 BH 역시, 2011. 10.경 D로부터 BN동 부지를 매수한 사실이 있고, 당시 D이 LPG 충전소 건축허가를 쉽게 받아주겠다며 2억 원을 요구하여 1억 원을 주었는데 당시 Q 이야기는 한 것 같지만 시장 이야기는 나온 적이 없고, 그 후 건축허가가 반려되었는데, 그때 D이 "담당공무원인 Q에게 청탁해서 바로 허가를 받아보려고 했는데 잘 되지 않았다."고 말하였다고 진술하였다(BH에 대한 증인신문녹취록 11, 12쪽). ⑤ 한편 V의 검찰 및 당심에서의 진술에 의하면, V는 D의 소개로 위와 같이 2011. 7.경 BN동 부지를 매수한 후 얼마 지나지 않아 DO BN동 부지에는 LPG 충전소 허가를 받을 수 없다고 하여 BN동 부지에 대한 매매계약을 해제하였고, 이에 D에게 이미 지급한 매매대금 등 3억 5,000만 원 상당을 돌려달라고 하였는데, D이 이를 돌려주지 못하고 있던 중 2012. 6.경 D이 위 매매대금을 반환하는 대신 U동 부지를 매입하면 행정소송 방식으로 LPG 충전소 허가를 내어 주겠다고 하여 U동 부지를 D로부터 매입하였고, 최종적으로 LPG 충전소에 관한 인·허가를 얻은 후에 11억 원을 D에게 지급하기로 약정하였다는 것이고, D 또한 이에 부합하는 진술을 하였다. 이와 같이 2012. 6.경은 D이 V에게 3억 5,000만 원을 돌려주지 못하여 매우 다급한 상황이었던 것으로 보이고, 앞서 보았듯이 그 이전 이미 D과 Q은 부적절한 관계를 가지고 있었던 것으로 의심되고, 특히 V에 대한 BN동 부지 매매계약 건에도 Q이 개입하였던 것으로 의심되는바, 이와 같은 사안의 전개 과정을 살펴보면, 공소사실 기재와 같이 피고인이 U동 부지 LPG 충전소 허가를 약속하면서 사업자를 물색하라고 지시하는 등 피고인의 주도하에 위 부지의 매입 및 허가 절차의 진행이 이루어진 것이라고는 보이지 아니하고, 그보다 U동 부지 및 그에 앞서 진행된 BN동 부지 전반에 걸쳐 D과 Q 사이의 독자적인 공통의 이해관계 및 상호 역할 분담 하에 이루어진 것으로 보는 것이 더욱 자연스러워 보인다. 앞서 본 바와 같이 Q이 V에 대하여 U동 부지에서의 LPG 충전소 사업대가를 요구하는 자리에 D과 함께 갔다는 사정 역시 이러한 추론에 부합한다. 6 D은 검찰에서나 당심 법정에서 V로부터 11억 원을 받기로 하였으나 실제로 U동 부지의 가격이 예상보다 오르지 않자 V가 D에게 U동 부지와 관련하여 손을 떼라고 하였고, 이에 D은 위 11억 원을 받지 않고 별다른 이의 없이 U동 부지와 관련한 사업에서 빠졌다고 진술하였다. 나아가 D은 당심에서 위와 같이 U동 부지와 관련한 사업을 포기한 사실에 대하여 A이나 피고인으로부터 사전에 허락을 받거나 이를 보고한 사실도 없다고 진술하였다(D 당심 증인신문 녹취록 27~28쪽). 공소사실처럼 U동 부지에 관한 허가 절차의 추진 및 사업자 물색이 피고인의 지시 및 주도 하에 비롯된 것이라면 D이 위와 같은 경위 및 방식으로 위 사업의 추진 및 이익을 쉽게 포기하였다는 사정 역시 이해하기 어렵다. V의 입장에서 보더라도 위와 같은 일방적인 개입 중지 요구는 시장으로서 지속적으로 위 사업 전반에 영향력을 행사할 가능성이 있는 피고인이 위 사업의 추진을 주도하거나 그 배후에 있었다고 인식하거나 전해들은 바 없었음을 반증한다.

7) According to the statement made by V, D only intended to purchase the Udong site as above and to obtain the LPG charging station building permit, Q was intended to help B in the process of the building permit, but the Defendant, the market, and the Defendant, at all. D sufficient to doubt as a specialized huber related to the charging station permit, etc., purchased the Udong site as a means of debt repayment for his/her own V, and in order to receive a promise to pay a large amount of profit, it would be more effective and natural to have V purchase the Udong site. Nevertheless, it would be doubtful that D’s name was derived from Q in fact from Q. 8D and Q appear to have been inconsistent with Q. In this respect, it is difficult to find that there is no reasonable evidence to acknowledge credibility of the statement as a whole.

7. At the time of the third investigation by the prosecution, D 2010. Around June 1, 2010, Q 1 attempted not to be the counter-party of Q 1 to report from a public official at the Market Office 201. However, D 1 stated that Q 1 would not be the party of the case (Evidence 800 pages) and that Q 1 would not be the party of the case (the court below stated that Q 1 would not be the party of the case, and that Q 2 would not be the party of the case (the evidence record was 80 pages). At the sixth investigation by the prosecution, I would like to inform the defendant of the information about the U 2 site at the direction of the defendant and to reverse the existing statement, and then I would like to say that Q 1 would not be the party of the case. However, D 1 to Q 201.

○ Meanwhile, Q stated that it would not be different from D at the time of the initial investigation by the public prosecutor, and that Q reached a settlement with the EEC around March 4, 2012. At the time of the third investigation by the public prosecutor, “D had attempted to make a settlement several times through EEC, but failed to comply with it,” but at the time of the third investigation by the public prosecutor, the Defendant changed his statement that Q would have made a settlement through arbitration on April 2012 (Evidence 1549 pages). Furthermore, at the examination by the court below conducted on March 16, 2016, Q did not make a settlement with D due to EEC, and it was close to D after March 16, 2012 (the record of the public trial was 132,133 pages). However, Q did not comply with Q prior to the date of the examination by the court below, but did not comply with Q’s request through the EEC prior to June 21, 2016.”

B. The lower court made a statement to the effect that “BN gas filling stations had already been closely related to D around November 23, 201,” which stated to the same purport (21, 722, 743, and 744) and that “BN gas filling stations had been rejected on or after November 23, 2011 (759 pages of the consolidated trial records). However, different from the statements that conflict with D and Q, T was partially contradictory and partly consistent with D and Q, it was extremely difficult for the lower court to obtain D from Q10 on August 2010 for Q10 to make a statement to Q10 of the Defendant’s request for a new trial (10 of the trial records) and that Q and Q were also subject to a new disciplinary measure (10 of the trial records).” Furthermore, Q and Q were also 10 of the Defendant’s request for a new trial (10 of the trial records).

② From April to May, 2012, when 2012, while emphasizing that the Defendant participated in the statement that appears to be inconsistent with the truth and consistent with D and Q as to the time and circumstances of compromise between the parties, it cannot be said that there was a motive for Q to conceal the fact that they had independently exchanged relevant information and unjust profits by mediating information on the LPG charging site regardless of the Defendant, from April to May, 2012.

(9) D shall also make an ambiguous and unclear statement about the timing and circumstances when he/she becomes aware of the method of obtaining permission for the filling station by the method of administrative litigation.

D. At the time of the first investigation by the prosecution, D was aware of the administrative litigation method that the LPG license was possible through the administrative litigation method during the process of the sale and purchase of BN site. At the time of the first investigation, D stated that QG license was possible at the time of the second and third investigation by the prosecutor’s office (Evidence No. 547, 548, 813). However, at the time of the first investigation by the prosecutor’s office on November 10, 2015, D stated that Q would not be able to obtain permission by the administrative litigation method. At the time of the second and third investigation by the prosecutor’s office, D stated that Q would not be able to obtain permission by the administrative litigation method, and that Q would not have been able to obtain permission by the administrative litigation method (Evidence No. 547, 548, 813) and that it would have been easily known that it would have been subject to an administrative litigation by the prosecutor’s office’s prior to the second investigation method.

In line with D’s first statement, it is sufficient to argue that information about U-dong site and method of administrative litigation was derived from the Defendant, and that information about U-dong site and method of administrative litigation was derived from the Defendant, and it is doubtful that it was due to the intention of hiding the fact that it had been well aware of it from that prior to that time.

① As seen earlier, D and Q did not state the Defendant’s involvement in the U-dong site at the same time (from the third investigation of November 10, 2015 to the sixth investigation of November 11, 2015) and the Defendant instructed D to the effect that it would have sent information on the U-dong site through D through A. According to D’s statements, D had to change the above statements from the point of time to the point of time, and at the same time, AJ made a statement to the effect that Qu 1 had to have changed its responsibilities from the point of time to the point of time in which Qu 1 did not know of the change in Qu.

11) As such, D and Q will reduce their responsibilities and transfer to the defendant their responsibility.

If there is sufficient motive to make a false statement in line with the horses, and if their changed statements are false, it seems that the actual criminal liability was avoided or reduced. In other words, according to D’s previous statement before the change, D requested Q to provide convenience and offered rebates as a cost of construction design service in the process of carrying out the LPG charging license for U-dong site by means of administrative litigation. As seen earlier, D and Q offered rebates as the cost of construction design service.

D and Q seem to be exempted from prosecution at least for U-dong site by changing the statement that the Defendant led to his involvement in U-dong site as above. In addition, other than U-dong site, the part on which D and Q stated that D offered rebates to Q as seen earlier (Ydong bath, DYdong Child Care Center, etc.) after the change of D and Q’s above statement does not seem to be a stample for conducting any investigation by the prosecution after the change of D and Q. In addition, D’s criminal facts that C and Q received KRW 100 million from BN site for the purpose of obtaining LPG charging permission. In addition, D were sentenced to imprisonment for one year and three months in cases such as violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (reconciliation) 599, 2016No2020, the appellate court sentenced D and D 4 years in consideration of the prosecutor’s favorable opinion about the Defendant’s LP station’s charge of receiving KRW 100 million from BN site.

(12) The fact that A received KRW 100 million from D in connection with the LPG charging business of the Udong site is recognized. However, even if part of the above KRW 100 million was delivered to the Defendant, there is no evidence that the Defendant acquired any profit in connection with the above LPG charging business. There is no evidence that A, in the course of the administrative litigation against the UPG charging business, would make a settlement at the request of the head of the Si if the problem arises to D. This is the doping and the above KRW 100 million was received. The above statement of A is difficult to readily conclude that it was false. Rather, in light of objective circumstances, such as the actual process of the pertinent case as seen earlier, it is difficult to accept the above statement in light of objective circumstances, such as the fact that Q received KRW 50 million in the form of construction design service cost from D in relation to the Udong site, and it is difficult to accept information about the defendant's business from the defendant or the public official under the direction of Q 10 million in the process of offering the bribe to the defendant's business.

1) The judgment of the court below

원심은 그 판시의 증거들에 의하여 인정한 사정들, 즉 ① D은 2012. 6.경 Y동에 복합쇼핑몰인 'AS'를 건축하기 위해 기존에 설치되어 있던 주유소가 수용된 것을 알게 되자 A에게 시장에게 부탁하여 Y동에 주유소와 충전소 설치허가를 받을 수 있도록 도와달라고 청탁하였고, A이 이에 응하여 위와 같은 알선을 한다는 명목으로 D로부터 1억 원을 지급받는 등 함께 일을 진행한 점, ② 이에 D은 지인인 Z에게 향후 수익금 중 일부를 대가로 지급받기로 하고 Y동 부지를 소개하여 2012. 8.경 이를 매수하도록 하였고, Z은 2012. 11. 30.경 당시 M시 개발제한구역 내에 거주하고 있던 AA, AB의 명의를 빌려 Y동 부지에 주유소 및 충전소 설치허가를 신청하였으며, 이에 대하여 M시가 2013. 1. 9. '배치계획 미수립 구간에 해당한다'는 사유를 들어 불허가 처분을 하자 행정소송을 제기하여 2014. 5. 23. 승소판결을 선고받은 점, ③ 위와 같이 승소판결을 선고받은 이후에도 주유소 및 충전소 설치허가를 받기 위해서는 M시가 배치계획을 고시하는 등 후속 조치가 있어야 함에도 불구하고 그 무렵 담당자인 Q과 T이 M시 공판장 허가 비리 사건으로 검찰 조사를 받는 등으로 인해 배치계획 고시가 지연되고 있었고, D은 자신의 소개로 Y동 부지를 매수한 Z으로부터 허가절차의 이행을 독촉받고 있는 상황이었던 점, 4 한편 피고인은 AU에게 허위로 진술하도록 지시하여 기부행위로 인한 공직선거법위반죄로 대신 처벌받게 하였다는 내용의 범인도피교사 혐의로 2014. 8.경부터 수원지방검찰청 성남지청에서 수사를 받게 되었고, 위 범인도피교사 사건의 변호인으로 2014. 9. 2.경 AV 변호사를 선임하여 검찰 수사에 대응하고 있었던 점, 그 후 2014. 10. 27.경부터 피고인 B이 위 AU가 대표로 재직하고 있던 AZ M시지부에 보조금과 청소용역 등을 제공하여 기부행위를 하였다는 내용의 공직선거법위반 혐의와 관련하여 M시청 공무원인 AW, AX 등과 M도시공사 사장 AY가 참고인 조사를 받게 되었고, 피고인도 위 범인도피교사 혐의와 위 공직선거법위반 혐의에 관해 2014. 11. 12. 성남지청에서 피의자신문을 받기에 이른 점, ⑥ D은 2014. 10.경부터 A이 피고인의 변호사선임비용이 필요하다면서 Y동 부지에 대한 주유소 및 충전소 설치허가와 관련하여 약속한 수익금 1억 원을 미리 달라고 하였는데, 당장에 1억 원을 마련해줄 방법이 없어서 대신 잘 아는 변호사를 소개해주겠다고 하였고, 그러자 A이 "Y동에서 나올 수익금으로 우선 변호사비용을 마련하라"고 하였다고 진술하였고, 피고인의 도움을 받아 U동은 물론 Y동 부지에 대한 사업도 진행한데다가 나중에 건축허가 과정에서도 계속적인 도움을 받기 위해서는 A의 위와 같은 요구를 거절할 수 없었고, 그래서 피고인의 변호사비용을 자신이 부담하기로 하였다는 취지로 진술한 점, ⑦ 피고인은 2014. 8.경부터 범인도피교사 혐의로 조사를 받게 되면서 2014. 9. 2.경 AV 변호사를 선임하였고, 2014. 11. 12.경 위 AV 변호사의 입회하에 성남지청에서 조사를 받았는바, 당시 조사받은 내용에는 범인도피교사 혐의 외에 위 공직선거법위반 혐의도 포함되어 있는데, AV 변호사는 위 사건에서 피고인의 범인도피교사 부분만 수임하였다고 진술하였고, 피고인도 이를 인정하고 있는 점, ⑧ 피고인은 원심 제3회 공판기일에서 위 범인도피교사 등 사건과 관련하여 검찰 조사를 2014. 11. 12. 한 번 받았는데 조사를 받는 과정에서 기존의 범인도피교사 외에 공직선거법위반도 혐의에 추가되었다는 것을 처음 알게 되었다고 진술한 점, ⑨ 피고인은 검찰 조사를 받은 바로 다음 날인 2014. 11. 13. 13:00경 A, D과 함께 송파에 있는 'BB' 일식집에서 AJ 변호사와 점심식사를 한 사실이 있는데, D은 A이 급하게 연락을 해서 AJ 변호사를 만날 수 있게 일정을 잡아달라고 하여 그날 오전 10:13경 식당예약을 하였고, 위 식사자리에서 피고인에 대한 검찰 수사에 대한 논의를 하였으며, 그 후 4~5일 정도 지난 후에 AJ 변호사 사무실에 피고인, A과 함께 방문하여 변호사 선임료 2,000만 원을 지급하였다고 진술하였는바, 피고인은 처음에는 이미 AV 변호사를 선임하였기 때문에 AJ 변호사를 만날 이유가 없다.면서 2014. 11. 13.경 위와 같이 점심식사를 한 사실 자체가 없다고 부인하다가 검사가 피고인의 법인카드로 위 식당에서 결제한 내역을 제시하자 그날 C이 성남지청에서 조사를 받았는데, 그 조사를 받기 전에 송파에 있는 일식집에서 A, D, C과 AJ 변호사를 만나 식사를 하였다고 인정한 점, ① 이러한 사정을 종합하면 피고인은 자신에 대한 혐의가 위 범인도피교사 부분에 한정된 것으로 생각하고 2014. 9. 2.경 AV 변호사를 선임하여 검찰 수사에 대응하다가 2014. 11. 12.경 피의자로 소환되어 조사받는 과정에서 위 공직선거법 위반 혐의에 관해서도 수사가 이루어지고 있다는 사실을 알게 되어 피고인 D을 통해 급하게 AJ 변호사와 약속을 잡고 바로 다음 날인 2014. 11. 13.경 점심식사를 함께 하면서 공직선거법위반 부분에 대한 논의를 한 후 AJ 변호사를 선임하기로 결정하였던 것으로 판단되는 점, ① D은 AJ 변호사에게 수임료를 지급하러 가기 1~2일 전에 5만 원권 지폐로 2,000만 원을 준비하여 A4 용지 크기의 노란색 서류봉투에 담은 다음 오후 4~5시경 A이 운영하는 W에 있는 콘테이너 사무실에서 A에게 전달하였다고 진술하였는데, D 명의의 휴대전화 통화내역에 의하면 2014. 11. 15. 11:42경 피고인 A이 운영하는 사무실의 직원인 CA의 휴대전화로 발신하여 12초간 통화한 사실이 확인되고, D이 운영하는 사무실의 직원인 CB 명의의 휴대전화 통화내역에 의하면, 2014. 11, 15. 11:43경 피고인 A 명의의 휴대전화로 발신하여 13초간 통화한 사실이 확인되는바, 이는 그날 D이 A의 사무실에 방문하기 위해 연락을 취하였던 것으로 보이는 점, ② 피고인, D, A과 피고인의 수행비서인 BG의 통화내역 및 문자메시지, 피고인과 위 BG의 카드 사용내역, 피고인의 국회출입내역 등 2014. 11. 17. 당일의 행적과 관련된 증거들에 의하면, D은 2014. 11. 17. 10:24경 M시청 비서실로 전화하여 10:47경 비서실장인 C을 통해 피고인의 그날 일정에 관해 알아본 후 10:59경 AJ 변호사에게 전화하여 방문약속을 잡고, A을 태운 상태로 2014. 11. 17. 12:14경부터 12:24경까지 사이에 M시청 또는 그 근처로 가서 피고인을 태운 다음 서울 서초구에 있는 AJ 변호사 사무실로 이동하였던 것으로 보이고, 수행비서인 BG은 그날 피고인과 따로 움직였고, 이에 A이 AJ 변호사 사무실로 가는 차량 안에서 12:29경 BG에게 연락하여 피고인의 행선지를 알려주었던 것으로 판단되며, 이에 D이 12:41경 BG에게 AJ 변호사 사무실의 주소를 문자메시지로 보내주어 AJ 변호사 사무실로 피고인을 데리러 오게 하였고, BG은 13:04경 AJ 변호사 사무실에 도착하였다는 사실을 알리기 위해 A에게 전화하였던 것으로 보이는 점, ③ D은 위와 같이 2014. 11. 17. 13:00경 AJ 변호사 사무실에 피고인, A과 함께 갔는데, 그 자리에서 피고인이 들으라는 의도로 AJ 변호사에게 "제가 부담하는 건데 제 얼굴을 봐서 잘 좀 해달라"라고 말한 사실이 있고, 당시 A이 선임료를 1,000만 원으로 깎아달라고 하여 AJ 변호사가 화를 내자 피고인이 "준비한 것 다 드려라"라고 말하였으며, 그러자 A이 며칠 전 자신이 주었던 현금 2,000만 원을 노란색 서류봉투에 그대로 담긴 채로 AJ 변호사에게 건네주었다고 진술한 점, 14 D은 위 2,000만 원의 출처에 관하여, 자신의 소개로 Y동 부지를 매수한 Z에게 허가절차 진행을 위한 경비가 필요하다고 말하고 받은 돈이라고 진술하였고, Z도 D이 2012. 10~11.경 다급하게 경비가 필요하니 2,000만 원이라도 만들어달라고 요청하여 Y동 충전소 설치허가 건에 13억 원을 투자한 동업자 BL에게 부탁해서 현금 2,000만 원을 받아 D에게 전달하였다고 진술하였으며, BL은 원심 법정에서 2014. 10.경 Z이 필요하다.고 하여 Y동 건 관련 경비 명목으로 현금 2,000만 원을 지급한 사실이 있는데, 위 돈은 2014. 10. 3.경 바이어인 CL이 국내로 반입한 약 6,300만 엔 중 500만 엔을 받아 한화 4,800만 원으로 바꾼 후 그 중 2,000만 원을 현금으로 가져다 준 것이라고 진술하면서 CL이 2014. 10. 3. 김포세관을 통하여 엔화 63,769,834엔을 국내로 반입하였다.는 취지의 외국환신고필증을 제출한 점 등을 종합하여, 2014. 11. 17.경 A이 D로부터 받은 현금 2,000만 원을 피고인의 AJ 변호사에 대한 변호인 선임비로 지급하게 하여 D로부터 위 금원 상당의 뇌물을 수수하였다는 이 부분 공소사실을 유죄로 인정하였다.

2) Relevant legal principles

In the case of bribery, in order to find a defendant, who is selected as a bribe in the case of bribery, denies the fact of the bribery at the time of the acceptance of the bribe, and there is no evidence, such as financial materials to support it, the statement of the receiver must be admissible as evidence, and there should be credibility enough to exclude a reasonable doubt. In determining credibility, not only the rationality, objective reasonableness, consistency in the contents of the statement itself, but also its human nature; in particular, there is a concern about the suspect's suspicion of a crime against him/her and there is a possibility that an investigation may be commenced or an investigation is being conducted in the course of the investigation, intimidation, etc. using it.

Even in cases where there is doubt that the admissibility of the statement does not reach the degree to which the admissibility of the statement is denied, it is also necessary to examine whether there is any effort to escape from the imminent place due to such doubt may affect the statement (see, e.g., Supreme Court Decision 2000Do5701, Jun. 11, 2002).

3) Determination of the immediate deliberation

Examining the following circumstances acknowledged by the lower court and the trial comprehensively based on the evidence duly admitted and examined, in light of the aforementioned legal principles and the strict criminal liability, the lower court’s evidence submitted by the prosecutor, such as the monetary records of A, D, and BG, cannot be deemed to have been proven as constituting a reasonable doubt. Thus, the lower court erred by misapprehending the legal doctrine or by misapprehending the legal doctrine, thereby adversely affecting the conclusion of the judgment.

① Comprehensively taking account of D’s statements from the prosecution to the original trial, D’s statement 10G 20,000 won for the benefit of A 10G 20,000 won for the Defendant’s 10G 2G 10 and 2G 2G 10,000 won for the Defendant’s 2G 2G 10,000 won for the first time after the 5G 2G 10,000 testimony, D’s statements were not consistent in the prosecution’s investigation process. In short, D’s statements were made at the time of 10G 20,000 for the first time after the 10G 2G 3G 20,000 (the 10G 14G 20,000,000,000 won for the first time after the 14G 206G 20,000 won for the first time after the 14G 2015.

This circumstance, like D’s initial statement, leads to fundamental doubts on the credibility of D’s final testimony that the time when A’s demand for payment of benefits was 0.0 billion won after D’s initial statement, 1.0 billion won before and after D’s initial statement, 2.0 weeks before and after D’s initial statement, 1.2 times before and after D’s initial statement (i.e., 1., 200 won before and after D’s initial statement, 1.0 days after D’s initial statement (i.e., 1., 200 won before and after D’s initial statement, 200 won was reduced). Moreover, D’s statement to the effect that there was 10 million won before and after D’s initial statement (i.e., 200 won before and after the date of its initial examination) and 1.0 days after the date of its initial statement (i.e., 10 million won before the date of its initial statement).

However, according to the prosecutor's office and the court below's decision, BL, Z's prosecutor's office and each statement at court of the court below 200,000 won for the defendant, D demanded 20,000 won as it is urgently required to operate the LPG charging station and oil station business related to the Y site. The Z again received 20,000 won from BL and delivered 20,000 won to D. 30,000 won for 20,000 won for 40,000 won for 20,000 won for 30,000,000 won for 20,000 won for 30,000,000 won for 20,000 won for 4,000,000 won for 30,000,000 won for 20,000 won for 30,000,000 won for 30,000.

However, this is inconsistent with the conclusion of D’s statement that the Defendant’s AJ attorney fee was reduced from KRW 40 million to KRW 20 million on or after October 17, 2014. In other words, according to D’s statement, it is required to prepare and request the Z to prepare money to be used as the above attorney fee before the Defendant’s attorney fee was reduced to KRW 20 million (According to the statement of Z, D is urgently required, and it is necessary to reduce KRW 20 million), and there is no reasonable ground to demand that D specify the amount of money before the Defendant’s attorney fee was reduced to KRW 20 million (including KRW 40 million).

③ In addition, according to the statement of D, Z, etc. as above, the point at which delivery of KRW 20 million was made from the Z was made on October 10, 2014 at the latest. Meanwhile, D states that November 15, 2014 at the time when delivery was made to A for the payment of attorney-at-law fees by the defendant. It is necessary to pay KRW 20 million as above. It is difficult to easily understand that D, which received the above money from the Z, had the above money for at least one month, and it is difficult to easily understand that it had the above money, and as to the reasons therefor, D did not provide a clear explanation.

(④) 한편, 위와 같이 Z은 D로부터 2,000만 원 마련을 요청받고 BL으로부터 2,000만 원을 받아 이를 D에게 전달하였다는 것이므로, Z으로서는 검찰에서 조사받을 당시 위 2,000만 원의 출처에 대한 자료제출 요구를 받았다면 당연히 BL에게만 이를 물어보았으면 족할 것이다. 그런데 Z은 Y동 부지 LPG 충전소 및 주유소 사업과 아무런 관련이 없는 DB, EE, DA에게 위 2,000만 원의 출처를 물어보았을 뿐 아니라, 그 물어보았다.는 내용도 "내가 2014. 10, 무렵 2,000만 원을 빌린 사실이 있느냐"가 아닌 "2014. 10. 무렵 현금 인출한 내역이 있느냐"였다(원심 증인 Z, DB 각 진술, 공판기록 305, 306쪽, 병합 공판기록 1345, 1347쪽). 이는 Z이 본인의 기억이나 객관적 사실과 무관하게 D의 요구에 따라 가공으로 2,000만 원의 출처에 관한 증빙을 만들려는 시도를 한 것이 아닌가 하는 의심을 불러일으키는 대목이다. 또한 앞서 본 바와 같이 BL은 2014. 10. 3.경 CL으로부터 받은 의류대금 중 4,800만 원에서 2,000만 원을 Z에게 주었고, 나머지 금액 중 1,000만 원을 2014. 10. 10., 500만 원을 2014. 10. 22. AD이라는 업체에 거래대금으로 주었다고 진술하고, 위와 같이 AD이라는 업체에 대금을 지급하였다는 증빙자료로서 AD의 거래장부 사본(증거기록 5640쪽)을 제출하나, 위 AD의 거래 장부 사본은 BL이 Z에게 2,000만 원을 주었다는 사실을 입증할 직접적인 근거가 될 수 없을 뿐 아니라, 1장짜리 사본에 불과하고 거래장부 전체가 제출된 바도 없어 그 진정성에도 의문이 제기된다. 특히 위 거래장부 사본에 의하면 2014. 10. 21.자로 '불량공제'로 잔액이 88,766,250원이 남은 것으로 기재되어 있는데, 그 아래에 2014. 10. 10. 1,000만 원 입금으로 잔액이 78,766,250원으로, 2014. 10. 22. 500만 원 입금으로 잔액이 73,766,250원으로 각 감소한 것으로 기재되어 있어 시간 순서대로 기재가 되어 있지 않을 뿐 아니라, BL의 진술에 의하면 그가 운영한 'EF'라는 업체는 2013. 10.경 이미 폐업을 하였지만 그 후로도 정상적인 의류판매업을 하지는 않은 채로 미수금을 정리하는 일을 하였고(공판기록 337쪽), 위 거래장부 사본은 위 EF와 AD이라는 업체 사이의 거래관계와 그에 따른 미수금 잔액 등을 기록한 장부라는 것인데(공판기록 342쪽), 위 거래장부 사본에는 2014. 11. 13.자로 2,800만 원이 입금됨으로써 미수금(EF의 입장에서는 미지급금) 잔액이 '0'으로 기재되었음에도 다시 그 아래 2014. 11. 17.자로 400만 원이 추가로 입금되어 미수금 잔액이 '- 400만 원'인 것으로 기재된 점에서도 그 진정성에 의문이 간다.

(6) In addition, the court below found that the YG charging station and the YG charging station in the Ydong site were included in the YG prepared by the EG, after called from the Z around February 2016 at the court below (34 to 348 pages of the trial record) but it was not submitted as evidence, unlike the BL's statement, that the Z did not have such a Z as it asked Y (281 pages of the trial record), and EG also stated that it did not contain a book on monetary receipts and disbursements from the Z (300,000 won of the trial record) to BT, the spouse of the defendant's spouse, and thus, the Y exchange rate is 10,000,000 won and 200,000 won of the YG charging and 300,000,000 won of the PE which were written by the investigation agency at the time of telephone verification at the time of the court below's decision.

7) On November 15, 2014, D found in A’s office located in W around 4-5:00 p.m. on November 15, 2014, and stated that D had 20,000 won on the same day, but D had stayed in AC’s office to Kim Jong, together with BI and wife CO, a spouse on the same day, on the same day.

검사는 D의 위 진술을 뒷받침하는 증거로서, D 명의의 휴대전화 통화내역 중 2014. 11. 15, 11:42경 A이 운영하는 사무실의 직원인 CA의 휴대전화로 발신하여 12초간 통화한 내역(기지국: EH동 일원, 이하 "통화내역 1"이라고 한다), D이 운영하는 사무실의 직원인 CB 명의의 휴대전화 통화내역 중 2014. 11. 15, 11:43경 A 명의의 휴대전화로 발신하여 13초간 통화한 내역(기지국: EH동 일원, 이하 "통화내역 2"라고 한다)을 제출하였는바, 이에 관하여 D은 2014. 11. 15. A과 사이에 변호사 선임료 2,000만 원을 전달하여 줄 시간과 장소를 정하기 위하여 통화한 것이고, 처음 자신의 휴대전화로 CA 명의 휴대전화에 전화하였다가 미처 다하지 못한 이야기가 있어 사무실 직원인 CB의 휴대전화를 빌려 A과 재차 통화한 것이라고 진술한다(증거기록 2227쪽). 그러나 통화내역 1의 통화종료시각은 11:43:06이고, 통화내역 2의 통화시작시각은 11:43:43 인바, 이미 자신의 휴대전화로 A에게 전화하였던 D이 불과 30여초 만에 못 다한 이야기가 있어 다시 A에게 전화하면서 이번에는 굳이 자신의 휴대전화가 아닌 CB의 휴대전화를 빌려 통화를 한다는 것은 자연스러운 일의 경과로 보기 어렵다. 오히려 위 통화내역은 A의 사무실 직원인 CA에게 전화하였다가 A이 사무실에 없어 A과 통화하지 못하자 이번에는 A의 휴대전화번호로 직접 전화를 하면서 만약을 대비하여 CB의 휴대전화를 빌려 통화를 한 것이라고 볼 여지가 많다(검사는 위 CA 명의의 휴대전화가 A의 이른바 대포폰이라고 주장하는 것으로 보이나, D에 의하면 CA이 A이 근무하는 컨테이너 사무실에 같이 있는 직원이므로 CA에게 전화하면 A을 바꿔주는 것이고, 위 CA 명의의 휴대전화가 A의 대포폰은 아니라는 취지로 진술한다. 병합 공판기록 815쪽), 나아가 A이 2014. 11. 15. 16:10:52경 자신의 휴대전화로 "EI"12)로 전화를 건 통화내역이 존재하고, 위 통화의 기지국 위치는 'EJ'로 확인되는바(피고인 제출 증 제55호증), 이는 A의 사무실과는 5km 이상 떨어져 있는 반면, A의 집과 500m 정도 떨어진 곳으로, A의 집에서 휴대전화로 전화하였을 경우 기지국으로 잡힐 가능성이 높은 곳이다(피고인 제출 증제50호증, 증 제55호증, 증 제56호증, 증 제58호증), 이러한 사정들에다가 2014. 11. 15. A과 함께 집에서 김장을 하였다는 취지의 원심 증인 CO의 진술까지 더하여 보면 [원심은 당시 김장 80포기를 하였다는 CO의 진술과 달리 CO이 작성하였다는 메모(피고인 제출 증 제40호증)에는 '김장 14포기'라고 기재되어 있는 점을 근거로 위 CO의 진술을 배척하였으나, 위 CO의 진술은 당시 다른 자매들의 몫까지 포함하여 전체 김장한 포기수가 80포기이고 자신의 몫으로 14포기를 하였다는 의미로 이해될 수 있으므로, 위와 같은 사정만으로 CO 진술의 신빙성을 쉽게 배척하기는 어렵다, A의 진술을 배척하고 위 D의 진술만을 그대로 신빙하기는 어렵다.

③ According to the monetary records and text messages of D, A and the Defendant’s performance secretary, and the use of the cards of the Defendant and the above BG, as indicated in the judgment of the court below, on November 17, 2014, D were on board the Defendant and AJ attorney-at-law’s office located in AJ attorney-at-law as stated in D, and BG, the Defendant’s performance secretary, was on driving the vehicle separately from the Defendant, was at the office of AJ attorney-at-law, and then was on board the Defendant, and then moved for a certain period. However, the Defendant has been on the same day on a different date, and began to the National Assembly to take a vehicle operated by BG with BG in M viewing at around 14:00 and began to have no fact between BG and the office of AJ attorney-at-law. Rather, it is insufficient to readily conclude this beyond reasonable doubt in light of the following circumstances. Rather, the Defendant’s defense submitted by the Defendant is easily rejected.

① According to the evidence No. 20 (S. No. 20), evidence No. 22 (Receipt), evidence No. 21 (N. 45) submitted by the defense counsel, etc., the Defendant appeared at the CP 11:57 on Nov. 17, 2014, and 12:1:14 on the day the Defendant’s corporate card was used in the cafeteria 2:00, 2000, and 3:00, 12:00,000, 2:3:00,000,000,000,000,000,000: 2:3:00,000,000,000,000,000,000,000,000,000,000:0,000,000,000,000,00,000).

On November 17, 2014, the Defendant claimed that MT-friendly axiss were moved from M to EK and returned to MM at around 14:0,00. Accordingly, the lower court’s witness CV and CW, which was a pastor who participated in the said festivals, began at 13:0 p.m., and at that time, the Defendant stated that he was a personnel member of the MM market on the side of the headquarters, and the witness EL, who was a pastor who participated in the said festival, made a statement to the same purport. In addition, even if multiple persons who participated in the said competition, participated in the said festivals, it is difficult to view that the Defendant did not appear to have participated in the interrogations published after the said festivals (No. 61-1 or 13 of the evidence submitted by the Defendant, which was written by his defense counsel, on the day when he did not appear to have been able to be seen as having been able to list the above articles on the same day.

9. The defendant's appointment of AJ attorney at the time stated that he had the intention to inquire about whether the defendant was prosecuted for violating the Public Official Election Act due to the provision of subsidies, etc. to the organizations with disabilities belonging to AU, which were under investigation at the Sung-nam Branch of the Suwon District Public Prosecutor's Office at the time. However, the actual AJ attorney-at-law accepted any case, and the acceptance of the case.

There is no objective material to know what kind of work has been done pursuant to the intention of acceptance of case later, and there is no evidence to be presented. Rather, D, at the court below, came to the Supreme Prosecutors' Office, to the effect that the part of violation of the Public Official Election Act against the defendant was not prosecuted, and that such information was not known to the defendant by AJ attorney-at-law (a combined trial record 323 pages).

① On November 12, 2014, the Defendant was under investigation by Suwon District Public Prosecutor’s Office 10, and became aware of the fact that there was a violation of the Public Official Election Act due to the provision of subsidies, etc. other than a criminal suspect due to the payment of an AU fine. On November 13, 2014, it is recognized that he provided meals with A, D, C, and AJ on the following day. However, the Defendant had already been subject to investigation by the Defendant as well as C, and C also was also likely to have an impact on the Defendant, and the investigation was also conducted by the 10th public prosecutor’s office prior to the above 10th public prosecutor’s office, taking into account the circumstances that the Defendant was under investigation by the above 10th public prosecutor’s office, and the Defendant was also under investigation by the 14th public prosecutor’s office prior to the above 10th public prosecutor’s office’s report on the appointment of the Defendant and the 14th public prosecutor’s office.

D. As to the assertion of mistake of facts as to the violation of the Act on the Aggravated Punishment, etc. of Specific Crimes due to the receipt of money and valuables under the name of the public official's entrustment to Defendant A

1) The judgment of the court below

The court below, based on the evidence of its ruling, stated that Q 2 stated that Q 1 was changed to B by requesting the promotion of T which is one of its subordinate staff members, through the 20th place of the market in Q 2, which was known as the 30th place of the market in Q 1, and that Q 2 had no choice but to seek assistance from Q 2, which is the green area permit team leader, and the working person, for the work of building permit, was engaged in the work of building permit for Q 1, and Q 2, which was found to have been aware that Q 2 was a person who could have an influence on the personnel affairs as the part of the market, and Q 2, which was not assigned to Q 1, which was not assigned to Q 2, which was known as the 10th place of the market in Q 2, which was known as the 20th place of the market in question, and that Q 2, which was hard to expect to be assigned to Q 1, 201, by requesting Q 2, to be assigned to Q 200.

2) Determination of the immediate deliberation

However, in light of the principle of strict criminal liability, D’s statement, the only direct evidence of this part of the facts charged, is difficult to believe it as it is in light of the following circumstances acknowledged by the lower court and the lower court’s duly admitted and investigated evidence. Q’s statement is difficult to believe in light of the same circumstances, or its statement alone is insufficient to recognize this part of the facts charged, and there is no other evidence to acknowledge it. Nevertheless, the lower court erred by misapprehending the facts charged against the Defendant.

① Q was promoted to Grade VI on May 28, 2010, and the minimum number of years and six months required for promotion under the Decree on the Appointment of Local Public Officials could have been met at the end of December, 2013. Furthermore, in the case of public officials of Grade VI such as Q, the level of 11 years and nine months was required to be promoted averagely to Grade V. Furthermore, Q was already subject to two years and two disciplinary measures prior to the end of November 2012, and it was almost impossible to expect such promotion between Grade 1 and 26 on October 26, 2011, and reprimand. Since Q was stipulated on the minimum number of years of promotion, it was difficult to view that Q was likely to have been promoted to have been promoted to Grade V at the end of December 1, 2013, it was also difficult to view that Q was likely to have been promoted to 10 years and five months after the end of December 2013.

② In addition, the term of office of the B was up to June 30, 2014, and thereafter, there seems to have been no guarantee that B may continue to hold a market position after being elected as the market (B has served as the three-party M market during the period from July 1, 2002 to June 30, 2007, but thereafter fell in the four-party M market election during the period from July 1, 2002 to June 30, 2007). Even if Q is possible to promote Q as above, it is difficult to reasonably understand that B delivered KRW 20 million to the Defendant at the point of November 2012.

On November 2012, Haman lost MPG charging station in the administrative litigation related to the UPG charging station in the Udong site, and around November 30, 2012, application for permission for LPG charging station and gas station was received. Such a position was that QPG charging station and gas station permission should be continuously assisted in the process of proceeding in the future to QT who is a public official in charge of UPG charging station or gas station in the YG charging station in the Ydong site and the YG charging station in the Ydong site in November 2012. If the Defendant offered KRW 20 million to QG charging station in response to the promotion of Q and T on November 2012, it was common sense to inform Q Q Q Q of the above fact without having been given from Q to Q 200,000,000 won to Q 30,0000 won before or after the issuance of the construction administrative record (the 2000,000).

④ At the time of November 2012, D had a total of KRW 40 million on loan to the Defendant (as at the time of the lower judgment and the lower court, the statement of the trial, the 193 pages of the trial record, and the record of the examination of the witness of the first instance court). D was unable to repay the Defendant with the money borrowed from the Defendant as above, and it is not a personnel railway, and therefore, it does not seem to be an urgent issue as to whether Q and T was promoted to Q and T, and thus, it is inconsistent with the common sense that D gave the Defendant a total of KRW 20 million on his money to make a request for promotion to Q and T.

⑤ In addition to the aforementioned circumstances, it is difficult to recognize credibility due to the lack of consistency in D’s statements or existence of doubtful circumstances in light of the circumstances indicated in the following.

위 2,000만 원의 출처에 관하여 D은, 검찰에서 처음에는 2012. 11. 26. BV로부터 받은 2억 원을 현금과 자기앞수표로 인출하여 그 중 1억 원은 DY동 토지구입대금으로 지급하고 나머지 1억 원 중 7,000만 원을 BW에 대한 투자이익금으로 지급하였으며, 남은 3,000만 원 중 2,000만 원을 피고인에게 준 것이라고 진술하였다(증거기록 803~804쪽). 그런데 그로부터 불과 10여일 만에 이루어진 피고인과의 대질조사 과정에서 D은 BW에게 7,000만 원을 주고 남은 현금에서 피고인에게 2,000만 원을 준 것은 맞으나 그 돈이 BV로부터 송금받은 2억 원에서 나온 것인지 다른 거래업자로부터 받은 수표를 교환한 것인지는 오래되어 잘 기억이 나지 않는다고 진술하였다(증거기록 1397쪽). 그리고 원심에서는 "2억 원 중에서 BW에게 주어서 3,000만 원을 받은 것이고, BV 것을 준 것은 아닌데 잘 모르겠다."는 등 2억 원의 출처에 대하여 잘 모르겠다.는 취지로 진술하였고(공판기록 192쪽), 당심에서는 "BV로부터 받은 2억 원을 모두 BW에게 주었다가 그 중 3,000만 원을 돌려받았다.”고 진술하였다(당심 증인신문녹취록 59쪽). 이와 같이 D은 2,000만 원의 출처에 대하여 계속하여 진술 내용을 변경하였다. ① 2,000만 원을 피고인에게 준 시기에 관하여 D은, 검찰에서 처음에는 2014. 3. ~4.경이라고 진술하였다(제2회 피의자신문조서, 증거기록 562쪽). 그러나 불과 1주일 후의 조사에서 2012. 11. 하순경이라고 진술을 바꾸었다(제3회 피의자신문조서. 증거기록 799쪽). 위와 같이 D이 2,000만 원을 피고인에게 준 시기를 2012. 11. 하순으로 특정하게 된 것은, D 명의의 은행계좌에 2012. 11, 26, BV로부터 2억 원이 입금되고, 당일 바로 현금과 수표로 이를 인출한 내역이 존재하였기 때문인 것으로 보인다. 그러나 이와 같이 D이 2,000만 원의 공여 시점을 특정한 것은 자신의 기억에 따른 것이라기보다 거꾸로 계좌거래내역에 진술을 맞춘 것으로 보일 뿐만 아니라, 앞서 본 바와 같이 D 스스로 피고인에게 준 2,000만 원이 BV로부터 나온 돈인지조차 잘 모르겠다고 진술하여 위 2,000만 원이 2012. 11. 26. 인출된 2억 원 중 일부라고도 확신하기 어려운 점을 고려하여 보면, 위와 같은 경위로 특정된 위 2,000만 원의 공여일시 및 그 출처에 관한 D의 진술은 믿기 어렵다.13) D이 아래에서 보는 바와 같이 객관적 정황으로만 보면 인사청탁 관련 금원 수수가 이루어졌을 가능성이 보다 높다고 보이는 2013. 8.경 보직 변경 무렵 위와 같이 2,000만 원을 수수하였다고 주장하지 않는 것도 그 주장의 전제되는 그 무렵 금원 마련의 출처에 관한 객관적 증빙이 없기 때문이라고 의심할 여지가 있다는 점에서 보더라도 그러하다.

The starting point D was, upon the request of Q from Q to Q at the time of the prosecutor’s investigation, asked Q Q to whether it is possible to promote Q Q, which is the chief secretary of Q, and then asked Q Q, to deliver the Defendant KRW 20 million to the Defendant with mind that Q was eligible to promote from August 2013 to September 2013 (Evidence No. 800-802 of the evidence record). However, it was pointed out that the Defendant was objectively ineligible to promote Q at the time of the investigation into comparison with the Defendant, and that Q would not be objectively qualified to promote Q, but Q would not be possible to promote Q as above, but Q would have changed the Defendant’s statement to the effect that Q Q 1 would not be contradictory to Q 1 at the time of the lower trial (Evidence No. 1392-1394 of the evidence record). Furthermore, D’s first statement to the effect that Q Q 1 would not have been contradictory to Q 1 at the time of the Defendant’s request to promote Q 1 to the Defendant’s prosecutor’s office.

D) At the time of the third examination of the suspect, the defendant stated that "I would like to know. I would like to have known that I would like to know that I would like to have any money." (Evidence No. 805 pages) it means "I would like to make it possible for the defendant to receive the document bags containing KRW 20,000,000 for the defendant at the time of the third examination of the suspect." (Evidence No. 805 pages) However, at the time of the first examination of the defendant, I would like to say that "I would like to request Q and T promotion." (Evidence No. 1393 of the evidence record) I would like to make a statement that would not be consistent with the situation at the time of delivery of money."

① 피고인에게 2,000만 원을 주었다고 Q에게 말한 시기와 관련하여, D은 검찰에서 처음에는 피고인에게 돈을 준 사실을 Q에게 말한 적이 없다고 진술하였다가 그 진술의 불합리성에 대하여 검사의 추궁을 받자 이윽고 Q이 징계를 받기 직전이나 직후 무렵14) Q에게 위와 같이 A에게 돈을 주었다고 귀띔하였다고 진술을 바꾸었다(증거기록 810쪽). 그러나 D은 원심 법정에서는 피고인에게 돈을 전달한 열흘 이내에 Q에게 이를 말해 주었다고 진술하였고(공판기록 163쪽), 당심 법정에서는 Q에게 위 돈 전달 사실을 언제 말해 주었는지 기억나지 않는다는 취지로 진술하였다(D에 대한 당심 증인신문녹취록 60, 61쪽). 이와 같이 D의 진술이 계속 변경되는 데에는 D이 실제 피고인에게 2,000만 원을 전달하였는지 여부 또는 전달 시기에 대하여 허위의 진술을 함에 따라 제기된 진술의 합리성에 의문 또는 위증의 시비 등을 회피하고자 하는 데에서 비롯된 것이 아닌가 하는 의심이 간다. 더구나 위 D의 어느 진술도 2013. 6.~7.경 또는 2013. 8.경 D로부터 위 돈 전달 사실을 들었다는 앞서 본 Q의 진술과 일치하지 않는다.

④ Even if Q said that D, like Q’s statement, provided money to Q around June 7, 2013 or around August 2013, 2013, it is difficult to avoid the possibility that D, in fact, gave money to the Defendant, or provided money to Q for any other time or for any other reason. However, it is difficult to eliminate the possibility that Q, even though Q, delivered money to Q in the same way as the facts charged, was delivered.

A. From June 2013 to June 7, 2013, D continued to get help from Q and its subordinate causes to Q and Q1. Meanwhile, Q and Q were under a situation where it was unlikely that Q and Q were subject to two months of each suspension from office on the ground that Q and Q were unfairly treated within the development restriction zone, and Q and Q were unlikely to be promoted. In light of the fact that Q and Q and Q were expected to be changed to a single position due to the above disciplinary action, it was difficult to view that Q and Q and Q were not assigned to the Defendant as if Q and Q were to be transferred to another position on the part of the market, and that Q and Q were not offered to the Defendant on the ground that Q and Q were not offered to the Defendant on the ground that Q and Q were unfairly treated in the application for permission to extend factories within the development restriction zone, and that Q and Q were not offered to the Defendant on the ground that Q and Q were not offered to the lower court on the ground that Q and Q were not offered to the Defendant on the ground of the above disciplinary action.

7) Even though Q and T were subject to the above two-month disciplinary action of suspension from office on February 9, 2013, Q and Q were issued as the head of the building administration team assessed as a higher position than the former Green Area Permit Team leader on August 9, 2013. T also maintained the position at the existing Green Area Permit Team without changing the position to another position. In light of these circumstances, it is true that there is a doubt that actual D, upon Q’s request, made a solicitation for the assignment of Q and T to the Defendant through Q and T. However, as seen earlier, it is difficult to readily conclude that Q and Q were given and received the aforementioned request by the Defendant for the aforementioned change in the charges, even if Q and Q did not receive some of the profits arising from the above business separately from the Defendant’s standpoint, and even if Q and Q did not receive some of the above funds from the Defendant’s standpoint, it would be difficult to conclude that Q and Q were given and received from the Defendant on the ground that Q and Q were offered and received the above part of the charges.

E. As to Defendant A’s assertion of mistake of facts as to Defendant A’s offering of a bribe, insofar as there is no proof as to the fact that D paid attorney fees of KRW 20 million to AJ attorney in lieu of Defendant A’s offering of a bribe to B, this part of the facts charged as to the offering of a bribe against the Defendant is not proven. The judgment of the court below convicting Defendant A of this part of the facts charged is erroneous in the misapprehension of facts, which affected the conclusion of the judgment.

3. Conclusion

A. As long as Defendant B’s abuse of authority and obstruction of exercise of rights, violation of the Act on the Prevention of Corruption and the Establishment and Management of the Anti-Corruption and Civil Rights Commission, and violation of the Act on the Prevention of Corruption and the Establishment and Management of Anti-Corruption and Civil Rights Commission, and violation of the Act on the Prevention of Corruption and the Establishment and Management of Anti-Corruption and Civil Rights Commission, and each violation of the Act on the Establishment and Management of Anti-Corruption and Civil Rights Commission are deemed to have concurrent crimes under the former part of Article 37 of the Criminal Act, the part of the judgment below against Defendant B (including the part of the reasons for innocence) cannot be maintained as it is, in its entirety, unless the court below rendered a sentence of imprisonment or a fine concurrently with respect to each of the above facts, on the ground that there is a ground that each of the above facts charged and the remainder of the facts charged against Defendant A were guilty, and that there is a concurrent crime under the former part of Article 37 of the Criminal Act, and thus, one of the judgment below is reversed, and the remaining part of the judgment below against Defendant A cannot be reversed.

【Judgment re-written against Defendant】

Criminal facts

[Defendant A]

1. Receipt of money and valuables under the permission for the construction of the charging station;

From April to May 2012, D proposed that V purchase three lots of land, including AG, (hereinafter referred to as “Udong site”) from the branch of D, and demanded V to purchase the Udong site at KRW 2.33 billion on June 22, 2012, and around that time, the Defendant and D promised to receive KRW 1 billion from V in return for obtaining LPG charging license from V.

After that, on December 2013, 2013, the Defendant requested D to “as soon as possible for personnel management to the mayor,” and received part of the profits in advance. At that time, the Defendant received KRW 100 million in cash from D’s vehicle parked in D’X parking lot operated by W.

As a result, the defendant received money and valuables on the intermediation of matters belonging to public officials' duties.

2. Receipt of money and valuables under the pretext of the permission for the construction of YG charging stations in the YG;

On June 2012, the Defendant accepted D’s request from the mayor, such as the U-dong LPG charging station, so that the Defendant can obtain the Ydong LPG charging station and the YG charging station.

Accordingly, D proposed to the Z, which is a regional ship, that "the permit for construction is obtained through administrative litigation, and the permit for the filling station and the oil station can be obtained. It can be subject to the cause of non-permission that can be avoided in the administrative litigation. Since it is an internal legal team in the city of MU, it can be subject to administrative litigation." Since D is in charge of the construction permit procedure, and the Z will sell the gas station and obtain the construction permit for the gas station after bearing the cost necessary for purchase of the land or administrative litigation.

The Z purchased three lots, including AH, (hereinafter referred to as "YY site"), around August 2012 in accordance with the foregoing agreement, and thereafter, on November 30, 2012, the Z borrowed the name of the resident of AAB at the time of designation of a development restriction zone, and applied for the permission to build LPG charging stations by lending the resident of AB at the time of designation of a development restriction zone, respectively, and on January 9, 2013, the M market was denied the application for the permission on construction on the ground that the "area for which M market was not established" was "area for which a plan for placement was not established," the winning judgment was finalized on May 23, 2014, and on the part including the site purchased by the Z on November 20, 2014, the M market announced the placement plan to install the gas station and the LPG charging station.

When the arrangement plan of M City was announced as above, the Defendant demanded D to “the amount of KRW 100 million out of the profits that the mayor needs to pay,” and received KRW 100 million in cash from D within D’s car parked in the parking lot in front of the Defendant’s residence located in AC apartment 101, around January 2015.

As a result, the defendant received money and valuables on the intermediation of matters belonging to public officials' duties.

3. Concealment of criminal proceeds;

around August 2012, upon receiving a request from D to the effect that “to cause a gas station and LPG charging station to obtain a permit for the gas station in the Ydong with a thickness,” the Defendant received KRW 100 million in cash from D in return for the said solicitation from the Defendant’s office located in W around January 2015.

The Defendant received criminal proceeds of KRW 100 million from D as above, and kept the above Defendant’s residence beta, and deposited KRW 50 million in the account under the name of Pro-Japanese in order to use it as a deposit for pre-use deposit of the above Defendant’s residence on May 29, 2015.

Afterwards, the defendant made the above AE transfer from the account under the name of AE to the account under the name of AF, a lessor, under the name of a deposit for lease, thereby pretending to the disposal of criminal proceeds.

[Defendant B] From July 1, 2002 to June 30, 2006, and from July 1, 2010 to June 30, 2014, Defendant B served in the M market twice. From June 4, 2014, the sixth local election implemented on June 4, 2014 was elected and served in the M market from July 1, 2014. On November 12, 2015, the Defendant was sentenced to 8 months of imprisonment with prison labor and 2 years of suspension of execution for the commission of an offender in the Sungnam branch of Suwon District Court for the commission of an offender. The judgment became final and conclusive on October 27, 2016.

1. Violation of the Political Funds Act by receiving a contribution of 5 million won or more;

On December 3, 2014, the Defendant was charged with non-detained of the charge of aiding and abetting criminals at the Suwon District Court Sungnam Branch, and the sentence above the suspension of execution became final and conclusive in the trial, resulting in the risk of losing the market position in the event that the sentence above the suspension of execution becomes final and conclusive, and sentenced the Defendant to appoint an attorney-at-law in kind with the full bench and to attend the trial

Around March 2015, the Defendant introduced BC attorney-at-law from his secretary C, and around that time, consulted with C about the above BC attorney-at-law at the attorney-law office located in Seongbuk-gu, Sungnam-si, Sungnam-si, and had him take charge of the defense of the above case.

Accordingly, around March 19, 2015, C entered into a contract with BC attorney on behalf of the defendant on behalf of the above attorney-at-law office, and paid 5.5 million won to BC attorney at his own expense as the case fee for the defendant. Accordingly, the defendant received 5.5 million won political funds from C in the name of the attorney fee for the above case of aiding and abetting the criminal suspect in a manner that is not stipulated in the Political Funds Act.

2. Violation of the Political Funds Act due to the receipt of an amount equivalent to financial interest of KRW 100 million as a result of a donation.

On November 12, 2015, the Defendant was sentenced to a suspended sentence of two years for the crime of aiding and abetting a criminal committed in the Sung-nam branch of the Suwon District Court on August 12, 2015, and the sentence became final and conclusive, the Defendant was faced with the risk of losing a market position in the event that the sentence becomes final and conclusive. In the appellate court trial, the Defendant was

On November 8, 2015, the Defendant: (a) at his office of work, at the time when the Defendant was elected to the MM market; (b) around June 2010, the Defendant: (c) requested BE to “at the expense of an attorney at the cost of an attorney at the cost of an attorney at the cost of an attorney at the cost of an attorney at the cost of an attorney at the cost of an attorney at the cost of an attorney at the cost of an attorney at the cost of an attorney at the cost of an attorney at around November 3, 2014; and (d) approved BE to “a loan from BF because there is time to receive compensation; (c) the Defendant borrowed KRW 100,000 from BF; and (d) received KRW 50,000 from BE on December 8, 2015, the Defendant used the Defendant’s office of an attorney at the cost of appointing an attorney at the cost of an attorney at 00,000 on December 26, 2015.

On the other hand, around February 15, 2016, the Defendant called BE and demanded that “Seoul would prepare for KRW 50 million,” and around February 16, 2016, the Defendant received KRW 50 million from BE.

As a result, the Defendant is against BF through BE in a way that is not provided for in the Political Funds Act.

The amount of KRW 100,00,000 has been contributed to the financial interest as a result of free borrowing of KRW 100,000 as attorney fees for the crime.

Summary of Evidence

【Crime Nos. 1 and 2 of the Judgment against Defendant A】

1. The defendant and D's partial statement in the original judgment

1. Each prosecutor's protocol of examination of the accused and D by the prosecution;

1. Each interrogation protocol of the prosecution about V, AI, and Z;

1. A written statement prepared by the Z;

1. An investigation report (official document related to a disposition of non-permission of construction), investigation report (a written agreement and a copy of the register of real estate), investigation report (a document submitted by the reporter), investigation report (a document submitted by the reporter), investigation report (a document attached to a disposition official document and administrative litigation document related thereto), investigation report (a document attached to an administrative litigation document regarding permission of charging station submitted by a suspect V), investigation report (a statement of a suspect related to the procedures for permission of charging station), investigation report (a confirmation of a suspect related to the procedures for permission of filling station submitted by a suspect), investigation report (a statement of a suspect related to the procedures for permission of filling station), investigation report (a statement of a suspect related to the procedures for permission of filling station and authorization related to the administrative litigation), investigation report (a statement of sources KRW 100,00,000,000,000,000,000,000,000,000,000,00,00,000, and0,00,000,).

1. A copy of an official document (including a detailed statement of the result of consultation on practical affairs of the relevant department), a copy of an official document of a provisional disposition of building permission, or a copy of an application for building permission

1. A copy of the sales contract agreement, a certified copy of the real estate register (including buildings), BJ-charge permission-related data, AI-related data, data related to the permission for a filling station, documents related to the permission for a filling station, documents related to purchase price payment, a copy of the sales contract agreement, documents related to the Ydong gas filling station (title: AB), documents related to the Ydong gas filling station (title: AB);

1. Analysis of each judgment, copy of Suwon District Court Decision 2012Guhap9445, copy of Suwon District Court Decision 2013Guhap2106, Supreme Court Decision 2005Do8795, Supreme Court Decision 2004Nu23836, Seoul High Court Decision 2004Nu23836, Supreme Court Decision 2012Da545 (Plaintiff AI), copy of the notice of date for pleading, copy of the plaintiff AI name, and copy of the judgment [Defendant A] [Defendant A]

1. The defendant's oral statement in court;

1. Statement made by the prosecution against the AE;

1. Investigation report (Confirmation of AE Account Statement related to a place of 100 million won use);

[A previous conviction in the Judgment against Defendant B]

1. Criminal records;

【Defendant B’s First Crimes】

1. The defendant and C's partial statement of each court below

1. Statement by the prosecution against C;

1. The prosecutor's statement concerning BC;

【Crime No. 2 of Judgment against Defendant B】

1. The defendant and C's partial statement in the original judgment

1. Each legal statement of the witness BF and BE of the original judgment;

1. Each prosecutor's protocol of examination of the accused;

1. Each prosecutor's protocol of examination of BE;

1. Each prosecutor's statement concerning BF, BE, and C;

1. A statement prepared by the BF;

1. Investigation reports (Attachment to BF, B, B, and N Account Details), investigation reports (Report on hearing of BE telephone statements from the President of the MMM Urban Corporation), investigation reports (Attachment to BE written statements);

1. A written request and reply for financial transaction information;

Application of Statutes

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

(a) Defendant A: Article 3 of the Act on the Aggravated Punishment, etc. of Specific Crimes, and Article 3(1)1 of the Act on the Regulation and Punishment of Criminal Proceeds Concealment (the most true fact about the acquisition of criminal proceeds and the choice of imprisonment);

(b) Defendant B: Article 45(1) of the Political Funds Act (the point of giving and receiving political funds, the choice of fines);

1. Handling concurrent crimes;

Defendant B: The first sentence of Article 37 and the first sentence of Article 39(1) of the Criminal Act (trade between crimes of aiding and abetting a criminal escape for whom the judgment of each of the crimes and the first head of each judgment as to the judgment against the principal

1. Aggravation for concurrent crimes;

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

(b) Defendant B: the former part of Article 37, Articles 38(1)2 and 50 of the Criminal Act (aggravating concurrent crimes with punishment as provided for in Article 2 of the Judgment with heavier punishment);

1. Detention in a workhouse;

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

1. Additional collection:

A. Defendant A: Article 13 of the Act on the Aggravated Punishment, etc. of Specific Crimes

B. Defendant B: Article 45(3) of the Political Funds Act

[Based on the computation of the additional collection amount with respect to Defendant B] 16) Interest 50,571,037 won (interest 50 million won per annum from February 16, 2016 to July 20, 2016) calculated by 505,464 won per annum from the civil statutory interest rate of 55% per annum from February 16, 2016 to the repayment date (interest 1,065,573 won per annum from the civil statutory interest rate of 55% from February 20, 2016 to the repayment date) = 7,071,037 won

1. Order of provisional payment;

Article 334(1) of the Criminal Procedure Act

1. Defendant A

(a) The scope of applicable sentences under law: Imprisonment for one month to seven years; and

(b) Scope of the recommended sentences according to the sentencing criteria;

The sentencing criteria are not set.

(c) Determination of sentence: Two years of imprisonment;

The Defendant received KRW 200 million in total on two occasions on the basis of the fact that the Defendant is the hands-on club of the MM market students, which could have a influence on the MM market, and received KRW 200,000 on the land located within a development-restricted zone on two occasions on the solicitation of permission for the installation of a gas station and a charging station, and concealed criminal proceeds. The Defendant transferred the correction of MM that should be executed in a transparent and fair manner as the object of private transactions by taking the correction of MM that should be executed in a transparent and fair manner as the object of private transactions, thereby significantly damaging the general trust on the fairness and integrity of the duties of the MM public officials. The Defendant actively demanded the donor to deliver money to the donor, and he consumed or concealed all of them by himself.

However, in light of the fact that the defendant appears to recognize and reflect all of his own crimes from the initial stage of investigation, the fact that there is no record of criminal punishment for the same kind of crime is considered as favorable to the defendant, and the above defendant's age, career, character and conduct, environment, motive and circumstance of the crime, etc., all of the sentencing factors specified in the arguments in this case, such as the above defendant's age, career, character and conduct, circumstances after the crime, etc., shall be determined as stated in the order (the court below ruled the defendant not guilty as follows, but the defendant actively demanded the delivery of money on the ground of influence over the MM market, and there is a high possibility of criticism in light of the fact that all of them belong to his own interest, so the court below

2. Defendant B

(a) Scope of applicable sentences under law: Fines of 50,000 to 15 million won; and

(b) Scope of the recommended sentences according to the sentencing criteria;

The sentencing criteria are not set.

(c) Determination of sentence: Fines of 10 million won;

When the defendant is at risk of losing his position as the market according to his own decision, he received political funds in a way that is not prescribed by the law after being provided with financial interest and equivalent amount to the borrowed money in the name of a lawyer's fees or attorney's fees. The punishment corresponding to the criminal liability is required.

However, as to a part of the crime, the crime was recognized from the initial stage of investigation, and most of the facts were recognized for the crime that has not been led to the remaining confessions, and the court below recognized that the defendant shows all his anti-discriminations, and that the defendant contributed political funds to the defendant is the chief secretary of the defendant's secret office, and the BF also tried to assist the defendant in good faith in a political crisis because of special friendly relationship with the defendant from the same high friendly relationship with the defendant. As such, the circumstances of the crime can be considered, the circumstances of the crime should be considered, and the fact that the defendant should consider equity with the case where the judgment is rendered simultaneously with the crime of aiding and abetting the defendant, and the punishment shall be determined as ordered by taking into comprehensive account all the sentencing factors specified in the arguments of this case, such as the age, career, character and behavior, environment, motive and circumstance of the crime, and circumstances after the crime, etc.

The acquittal portion

[Defendant B]

1. Abuse of authority and obstruction of exercise of rights, prevention of corruption, violation of the Act on the Establishment and Operation of the Anti-Corruption and Civil Rights Commission, and acceptance of bribe

A. Summary of the facts charged

(i) the status and status of the persons concerned;

The Defendant served two times from July 1, 2002 to June 30, 2006, and from July 1, 2010 to June 30, 2014, the Defendant was elected in the sixth local election, which was implemented on June 4, 2014, and served as MM market from July 1, 2014 to June 1, 201, and has the authority to direct and supervise the public officials in charge as the permitting authority for various projects within the MM city development restriction zone.

A is the relationship between the defendant and Spoon (N's dynamics of the defendant). D is a person who operates a 'P Licensed Real Estate Agent' from MM 0 to PP Real Estate Agent on July 1, 2010, and at the time the defendant was appointed as a 5th MM market, he/she works as a co-member of the corrective acceptance committee.

At the time of the third local election on June 13, 2002, AL served as a performance note for B, a candidate for the M market at the time of the third local election on the 13rd local election, and was the secretary of B, a M market from July 1, 2002 to June 30, 2006, and was the member of the Gyeonggi-do Council from July 1, 2010 to June 30, 2014. Q serves as the member of the Gyeonggi-do Council. From August 2010 to February 2013, 2013, Q is a person in charge of the establishment of a plan for placement of liquefied petroleum gas charging stations for automobiles (hereinafter referred to as "LPG charging station") and the selection of a business operator in accordance with such plan, and all kinds of permits, permits, etc. in the development-restricted zone under the name of residents at the time of the development-restricted zone. V is a person who acquired the land under the name of AGM and 3GU.

On July 2, 2015, Z is a person who acquired a permit to construct gas station in the name of AA, a resident at the time of designation of a development restriction zone, and a permit to construct LPG charging station in the name of AB, respectively, on three lots, such as AO, AH, and AP (hereinafter referred to as "YG site").

2) Violation of the Act on Abuse of Official Authority and Interference Prevention and Anti-Corruption and Civil Rights Commission Act

A) According to the Act on Designation and Management of Development Restriction Zones and the Enforcement Decree of the Act on Designation and Management of Development Restriction Zones, in principle, a development restriction zone station station is prohibited from exercising property rights, such as construction of buildings and alteration of the purpose of use, installation of structures, alteration of the form and quality of land, etc. However, residents at the time of designation of development restriction zones may install a PG charging station on the main roads, such as national highways and local highways, according to a plan for placement formulated by the head of a Si/Gun/Gu,

Accordingly, the head of a Si/Gun/Gu shall permit the installation of LPG charging stations on the main roads, such as national highways and land embankments that can minimize damage to development-restricted areas, and shall establish and publicly notify the placement plan considering the traffic volume of the relevant road and convenience in the use of the facilities, and shall implement the authorization procedure by selecting the highest number of persons among the residents who have applied for the designation of a business operator in accordance with the allocation criteria

B) Abuse of official authority and obstruction

In 2011, the Defendant received a solicitation from AL to the effect that “AR wants to operate a charging station within a development-restricted zone by having its staff and become aware of the site for obtaining a filling station permit within a development-restricted zone” from AL in the M viewing market room located in A Q around A. A. At that time, the Defendant ordered M viewing Construction and the Green Permission Team leader Q to “the site for the filling station permit” to be “the site for the filling station permit” to be “the head of the Green Permission Team in charge of the LPG charging station permit within the development-restricted zone. However, the green permission team manager has the duty to examine whether to grant the license on the premise of the application for the designation of the LPG charging station operator in accordance with the placement plan publicly notified in MM city, and did not have any duty to find a site for the filling station permit for specific persons

Nevertheless, Q, as the market, was instructed by the defendant with personnel management authority for himself, and around six months from that time, in order to directly examine the city development plan, the cadastral map, and the place where the previous LPG charging station is installed in the MM development restriction zone, Q colored the site for which the permission for the LPG charging station can be granted within the MPG development restriction zone. On April to May 5, 2012, Q directed Q Q to "I would find the site for the charging station, I would like to find the site adjacent to the Udong Office, and I would like to "I would like to devise the way to grant the permission for filling station to that location by publicly announcing the placement plan." Accordingly, the defendant abused the direction and supervision authority to Q who is a public official of M viewing, and let Q do the above work as above.

(c) No public official who violates the Act on the Prevention of Corruption and the Establishment and Management of the Anti-Corruption and Civil Rights Commission shall obtain or have a third party obtain any property or property interest, using any confidential information learned while performing his/her

Nevertheless, around April 2012 to May 2012, the Defendant listened to the horses that “it is difficult to promote the LPG charging business due to the circumstances of the operator,” and that “A would purchase a U-dong site that meets the requirements for the LPG charging license and file an application for a license, it means that A would color the business operator who will purchase the U-dong site.” This means that “D would find a business operator to purchase the site because the market NPG National Assembly notified D of the site to be allowed for the LPG charging license,” and that “A would find a business operator to purchase the site.”

Accordingly, D made a proposal to purchase U-dong site by informing V of the above facts around that time, and made V consenting to it purchase KRW 2.33 billion on June 22, 2012, and around that time, A and D promised to receive KRW 1 billion out of the profits that V will obtain in return for obtaining LPG charging license from V.

After that, around June 29, 2012, V applied for a construction permit for LPG charging station in MM by lending the name of AI, a resident, at the time of designation of a development restriction zone. On January 22, 2014, the Defendant, who was in the five M market term, announced the placement plan to grant priority to the above AI to the designation of a business entity, and designated AI as a LPG charging business entity on February 28, 2014, and issued a construction permit for LPG charging station on September 2, 2014 during the six M market term. Accordingly, the Defendant acquired the ownership of U-dong site amounting to KRW 230 million by using confidential information that he/she came to know in the course of performing his/her duties.

3) Acceptance of bribe

A) Progress in the process of permitting YPG charging stations and LPG charging stations

D came to know of the accommodation of existing gas stations in order to build "AS" a complex shopping mall in Ydong around June 2012, A obtained A's consent by stating "A's consent by requesting the Mayor, such as the U-dong LPG charging station, so that A can obtain permission for the Ydong gas station and LPG charging station."

D In this regard, D proposed to the Z which is the regional owner of the ship, that "it shall be allowed to file an application for permission of construction through administrative litigation, and to file an application for permission of the gas station and the gas station. It may be allowed to file an administrative litigation because the internal legal team in the city of M. M. also talks with the internal legal team in the city." Since D is in charge of the construction permission procedures and bears the cost necessary for purchase of the land or administrative litigation, it is intended to sell the gas station and the gas station to divide profits from the sale of the gas station and the gas station.

The Z purchased Ydong site around August 2012 in accordance with the above agreement, and thereafter, on November 30, 2012, it applied for permission to construct gas stations by lending the name of the resident of the development restriction zone at the time of designation of the development restriction zone, and for permission to construct LPG charging stations by lending the name of the resident of AB at the time of designation of the development restriction zone, respectively, and on January 9, 2013, the Z rejected the application for permission on the ground that the MM market is "section for which no plan to allocate is to be established", and won on May 23, 2014.

However, even after the completion of the administrative litigation as above, in the situation where M market does not take follow-up measures such as publicly announcing the relevant placement plan, the investigation of the case, such as aiding and abetting the criminal defendant, began as follows.

B) Progress of the case including aiding and abetting the defendant to commit the crime

On October 16, 2009, prior to the election campaign period, the Defendant sent to the 5th local election, which was implemented on June 2, 2010, the Defendant attended a meeting held in a restaurant located in AT and paid 500,000 won to the 5th local election candidate. On August 2010, the Defendant was sentenced to a fine of 1.5 million won due to a crime of violating the Public Official Election Act, while the Defendant was sentenced to a fine of 70,000 won due to a crime of violating the Public Official Election Act, on the grounds that the investigation was commenced at the M police station around August 20, 2010.

On the other hand, AU, around May 2014, submitted a written statement to the Ma City Election Commission to the effect that "any person who violated the Public Official Election Act, which was punished in 2010, made a false statement to the Sung-nam Branch Office of Suwon District Public Prosecutor on the ground that the statute of limitations has already lapsed," and that "the person who made a false statement to the Sung-nam Branch Office of Suwon District Public Prosecutor's Office of Suwon District Public Prosecutor's Office of 2014."

C) Acceptance of bribe

From August 2014, at the Sung-nam Branch of the Suwon District Prosecutors' Office, the Defendant was investigated under the above suspicion, such as a criminal escape teacher, etc., and on September 2, 2014, the Defendant appointed AV attorney-at-law around September 27, 2014. From October 27, 2014, the president of the M viewing and AV et al. who is a public official of MU was investigated as a witness in relation to the suspected violation of the Public Official Election Act that provided subsidies and cleaning services, etc. to the AZ MU branch, a representative of the said AZ branch, the Defendant was willing to appoint another counsel other than the above AV attorney-at-law.

On the other hand, upon becoming aware of the Defendant’s additional appointment of a lawyer, A requested D to “as the cost of a lawyer is required to change the market owner’s revenue in advance,” and through A, D under the procedure for permission of a gas station and a LPG charging station, instead of giving advance profits, introduced the Defendant through A with a reasonable friendly AJ attorney-at-law, and intended to bear the fees of a Justice J-at-law.

D On November 15, 2014, after visiting the AJ attorney-at-law office located in Seocho-gu Seoul Metropolitan Government along with the Defendant and A, consulted about the case of the Defendant's above offender escape, etc. at the AJ attorney-at-law office in Seocho-gu, Seoul, and the Defendant was investigated as a suspect at the Sungnam Branch office of the Suwon District Prosecutors' Office, and around November 13, 2014, at the "BB" office located in Gangdong-gu Seoul Metropolitan Government, the Defendant arranged the AJ attorney-at-law with A, along with A and D, and then delivered KRW 20 million in cash from the AJ attorney-at-law office in W as of November 15, 2014.

Since then, around November 17, 2014, the Defendant visited A and D to pay the fees to the said AJ attorney’s office, and at that place, A paid KRW 20 million in cash received from D as above as the fees to AJ attorney. Accordingly, the Defendant received a bribe of KRW 20 million in relation to D’s duties.

B. Determination

As seen earlier, as seen in Article 2-1, 2-1, 2-1, 2-2, 2-2, 325 of the Criminal Act, since each of the facts charged constitutes a case where there is no proof of crime, the court shall render a judgment of innocence pursuant to the latter part of Article 325 of the Criminal Act

2. The point of violating the Political Funds Act by receiving a contribution of 50 million won or more; and

A. Summary of the facts charged

On November 12, 2015, the Defendant was sentenced to a suspended sentence of 2 years for the crime of aiding and abetting a criminal in the Suwon District Court's Sung-nam branch, which was sentenced to a suspended sentence of 8 months for the crime of aiding and abetting a criminal, and when the sentence becomes final and conclusive, the Defendant was faced with the risk of losing a market position in the appellate court's judgment.

On November 2015, the Defendant: (a) at his office of work, around June 2010, when the Defendant was elected in the MM market, the Defendant: (b) requested BE to the president of the MMM corporation with a usual friendly relationship, such as appointment to the president of the MM corporation on November 3, 2014; (c) that “at the expense of the attorney is necessary to lend KRW 100 million; and (d) that “I would lend money from BF because I would have been able to receive compensation; (b) I want to lend money from BF; (c) the Defendant heard that “I keep custody of KRW 100 million from BF” from BE on December 8, 2015; and (d) requested BG to receive KRW 50 million from BG to the Defendant’s office of work, and used the Defendant’s expense to take charge of accepting bribe 200,000,000 won from the Defendant’s expense of taking charge of bribery 30,200,0,000,00,001.

On the other hand, around February 15, 2016, the Defendant called BE and demanded that “Seoul would prepare for KRW 50 million,” and around February 16, 2016, the Defendant received KRW 50 million from BE.

As a result, the Defendant borrowed KRW 50 million from BF under the name of attorney fees, etc. in the above criminal escape case through BE in a way that is not stipulated in the Political Funds Act, and received the said KRW 50 million as well as the donation of the interest amount.

B. Determination

As the lower court also determined as appropriate, it is difficult to view that the fact that the Defendant was donated KRW 50 million from BF on February 16, 2016, even if based on all the evidence submitted by the Prosecutor, was proven to the extent that there is no reasonable doubt.18)

Therefore, this part of the facts charged should be pronounced not guilty pursuant to the latter part of Article 325 of the Criminal Procedure Act because it falls under the case where there is no proof of crime. However, as long as it is found guilty of the violation of the Political Funds Act due to the financial interest and the amount equivalent to KRW 100 million as stated in the judgment of the defendant within the same facts charged because it is included in the above facts charged

[Defendant A]

1. Violation of the Act on the Aggravated Punishment, etc. of Specific Crimes due to the receipt of money and valuables under the name of public officials;

A. Summary of the facts charged

The defendant is a public official in charge of authorization and permission or M viewing duties or public official in charge of public officials in M.

While entering the request for promotion and internal personnel movement, on November 2012, D received cash of KRW 20 million prepared by D from D in receipt of a request for "the head of the M viewing Q Q Q Q Q Q and T in the City Mayor so that it can be promoted."

As a result, the defendant received money and valuables on the intermediation of matters belonging to public officials' duties.

B. Determination

As seen above, as seen in Article 2-D. of the Reasons for reversal, since this part of the facts charged constitutes a case where there is no proof of a crime, the judgment of innocence is rendered pursuant to the latter part of Article 325 of the Criminal Act, and the summary of this part of the judgment is publicly announced pursuant to Article 5

2. The point of the teacher offering of bribe;

A. Summary of the facts charged

The Defendant received a request from D to the effect that “the progress of the procedures for permission to charge a gas station and a LPG charging station within the MPG charging zone” in response to the Mayor, as stated in the facts charged of bribery against B, and the Defendant received a request from D to the effect that “the progress of the case, such as aiding and abetting the Defendant to commit a crime of aiding and abetting a criminal, and violating the Public Official Election Act,” during the process of obtaining the investigation from the Sung-nam branch of the Suwon District Public Prosecutor’s Office, the Defendant requested D from October 2014 to the effect that “the cost of the market Nitter is necessary” from D as stated in the facts charged of bribery against B, and introduced D to A through the attorney-at-law who has a usual friendship, such as the facts charged of bribery against B.

around October 2014 after introducing AJ attorney-at-law from D, the Defendant visited the AJ attorney-at-law office located in Seocho-gu Seoul Metropolitan Government, and consulted about B's investigation into the above Sungnam branch office, and received KRW 20 million from D as the above attorney-at-law fee from the defendant's office located in W around November 15, 2014.

On November 17, 2014, the Defendant paid 20 million won in cash, which he received from D, as a commission fee, from the said AJ attorney-at-law office, among those present in B and D. Accordingly, the Defendant instigated to offer a bribe equivalent to KRW 20 million by having D give a bribe equivalent to KRW 20 million to B.

B. Determination

As seen above, as seen in Article 2- E. E. of the Reasons for reversal, since this part of the facts charged falls under a case where there is no proof of crime, the judgment of innocence is rendered pursuant to the latter part of Article 325 of the Criminal Act, and the summary of this part of the judgment is publicly announced pursuant to

presiding judge, judge, full-time leaves

Judges Min Il-young

Judges Hong Man-man

1) hereinafter referred to as “combined trial records” is called “combined trial records.”

2) On November 3, 2011, the term “BN site” refers to the DX land for which an application for a permit to construct a filling station was filed under the name of BJ.

section 3.

3) On January 9, 2013, a request for a LPG charging station and oil station building permit was filed under the name of AA and AB, and the continued hereinafter the same shall apply.

'YYJ site'.

4) Furthermore, in light of the relevant evidence, the progress of the instant case was instructed by the Defendant as to the water surface color of the filling station site in the instant case on 2011.

On the other hand, it is difficult to understand that it did not report the progress or result to the Mayor until April 2012, while it is difficult to understand that it did not report the progress or result to the Mayor.

10.Pursuant to the factual common interest of D, selling its shares on the premise that D grants a charge station permit for BN site to V.

and it is not easy to obtain 350,000,000 won in advance, to cancel the contract and to cancel the contract around November of the same year, the above BN site also to BH.

10,000 won to obtain the charging station permission, but failed to obtain the permission and demanded the return of the above advance payment from the above V.

Since it seems that the solution has been inevitably found in the old spot, it is possible to permit Q to recharge in the jurisdiction at the time of such situation.

There is a lot to see that the examination of the site has been completed, and it is not reported to the defendant who is the market owner on the result of the investigation.

There is a lot of room to view that the direction itself was or was in the absence of the direction itself at a general level, and the director of the market.

(1) A preferential right to use an administrative litigation in which permission may be granted by indirect means not revealed on the part of the practitioners without such support;

The method was known through the administrative litigation related to BN site BH and the method was used to use it, and around June 2012, V made the above review.

The purchase of U-dong site known to him in the course of the process and the acquisition of the license by the method is responsible for D and Q, according to the cancellation of the BNdong site contract.

a statement that this is solely in line with the common interests and circumstances of D and Q.

A. The Defendant directed A to the color of the permiter on U-dong site around 2012, 4-5, as in the facts charged;

A If it was delivered to D, Q or D, in which Q or D was in the above-mentioned situation, at that time, at that time, to the defendant or any person who carried out Q or D,

It is also difficult to clearly explain that the payment of money to A was made on or around December 2013 without paying the money to the extent of one year thereafter.

of this chapter.

5) normally permit LPG charging stations: application for the designation of the operator of the notice of the “LPG charging arrangement plan” - the operator’s vessels through an examination in accordance with the arrangement plan.

? By going through the procedures of the “Building Permit”, while the so-called administrative litigation is against the rejection of the application for a construction permit for the “LPG charging station.”

The adjudication of the judgment against the defendant is final and conclusive, and the subsequent designation of the business operator in the lawsuit against the defendant for cancellation of the reduction permission / the cancellation of the disposition against the consideration of construction permission

shall mean going through the procedures of “construction permission and construction permission”.

6) V applied for a building permit by lending the name of AI.

7) Article 7 of the Enforcement Rule of the Act on Special Measures for Designation and Management of Development Restriction Zones (Formulation Standard for Plan for Placement of Gas Stations, etc.)

The standards for formulating a placement plan (hereinafter referred to as "disposition plan"), such as the distance between facilities of gas stations and liquefied petroleum gas filling stations for automobiles, shall be all the standards for formulating the placement plan.

For example, as follows:

1. Installation of gas stations and liquefied petroleum gas charging stations for automobiles on main roads, such as national highways and local highways, which may minimize damage to development-restricted zones;

and shall take into account the traffic volume of the relevant road and the convenience of the use of such facilities, etc.

2. The interval between gas stations shall be at least two kilometers by the same direction of the relevant road and the interval between gas charging stations for automobiles;

Not less than five kilometers for each direction (not less than two gas stations or between two liquefied petroleum gas filling stations for motor vehicles, which are not restricted development zones;

If there is a station, only the road distance located in a development restriction zone shall be added up).

2-2. Notwithstanding subparagraph 2, the distance under the same subparagraph shall not apply to the following cases:

(a) Filling two gas stations or two liquefied petroleum gas for motor vehicles, which are respectively established in both Sis/Guns/Gus focusing on the boundaries of Sis/Guns/Gus;

Between Stations

(b) Between two gas stations or between two liquefied petroleum gas charging stations for motor vehicles, which are located between areas other than development restriction zones: Provided, That the relevant land shall be classified;

The head of a Si/Gun/Gu having jurisdiction over the station shall be subject to subparagraph 1, and the development restriction zone is cancelled pursuant to Article 2 (3) 2 of the Decree and other areas.

In consideration of road conditions, etc. in an area, other than a development-restricted zone, a gas station or a liquid stone for automobiles within the area adjacent to such area;

Only where it is deemed necessary to install a gas charging station.

3. A placement plan shall inevitably cause a gas station or liquefied petroleum gas filling station for automobiles due to the construction or expansion of roads or significant increase in the volume of traffic;

It shall be changed only in cases where additional installation is required.

8) Even if the plaintiff who filed an application for permission to construct the original LPG charging station through administrative litigation won the case, the procedure, such as a new notice of the plan, shall be

It seems that there is no legal basis for selecting the relevant plaintiff as a business operator and granting the permission to him/her.

If no LPG placement plan is established, the licensing authority shall only establish such placement plan and on its own basis.

The application for permission shall not be rejected, and the application for permission shall be individually and specifically determined in accordance with the provisions and purport of the relevant Acts and subordinate statutes.

After the Supreme Court Decision 2005Du8795 Decided April 14, 2006 was pronounced, local governments shall decide whether to grant or not."

Construction without accurately understanding the purport of the judgment and the relevant statutes and without notifying the winning plaintiff of the disposition plan in a lawsuit for revocation of building permission.

It seems that permission was granted.However, in MM City, it was rejected in administrative litigation as a result of consultation with the Ministry of Land, Infrastructure and Transport.

No construction permit shall be granted immediately without establishing the plan: Provided, That the priority shall be given to the winning person in an administrative litigation.

(Evidence Record 3429 pages) On January 23, 2014, the LPG charging station on the U-dong site and BN site with advice that it may establish a placement plan (Evidence Record 3429 pages)

In public notice of the schedule, the applicant has given priority to AI and BJ (a witness BH statement and evidence record 3427 to 3462).

(E) However, the point of view in the Gyeonggi-do audit to the effect that giving priority to the winning person of the administrative litigation is also preferential.

As a result, in the public notice of the arrangement plan for the Ydong site on November 2014, 2014, the above provision does not include the above provision for priority grant.

C. (Evidence Records 3478 pages 3524 up to 3524) In light of these progress, administrative litigation is filed at least before November 2014.

Through the method, it seems that a specific person can grant a license for the LPG charging station or give a priority to a specific person at least.

9) It is referred only to as "public trial records".

10) On September 10, 2012, V obtained the conditional authorization and permission from V to complete the LPG charging and licensing work with respect to D on the U-dong site.

1.1 billion won shall be drawn up in this chapter and a semi-payment note (Evidence Record 1684 pages).

11) At the time Q received a bribe of KRW 30 million in total in relation to the construction, etc. of a utility tunnel board in a development-restricted zone as the head of the MViewing Green Area Permission Team.

In accordance with a final judgment sentenced to two years of imprisonment for the crime of acceptance of bribe, the defendant was serving in a female prison, and the defendant was investigated by the prosecutor in the prison.

It seems that the situation of transfer to the detention center seems to refer to the situation of transfer.

12) This number is the telephone number of the beauty room accompanying A, which appears to have been phoneed on November 18, 2014 by A for reservation of head salt (A)

No. 67 No. 1 to 3) of the evidence

13) BW receives a transfer of KRW 100 million from D to account transfer in currency with prosecution investigators on November 30, 2012, and KRW 70 million received in cash and check.

At the same time, BW refused to submit its books of account. Evidence records 858 pages of investigation report), the statements of BW alone are alone DI BV.

It is difficult to conclude that KRW 170,000,000 among the KRW 200,000 received from him, and further D’s KRW 200,000 among the above KRW 200,000 correspond thereto.

It is not only difficult to conclude that 20 million won out of 30 million won, excluding money, has been granted to the defendant.

14) The point at which Q Q was subject to disciplinary action is February 28, 2013.

15) Although the facts charged indicate “BE and BF”, considering the overall context, “BF is derived from BF through”.

Since it seems that the correction was made and recognized as above.

16) Supreme Court Decision 16 May 16, 2014 regarding the method of calculating the amount of additional collection in a case where the crime of bribery gains illegal property profits through gratuitous lending of money and valuables.

See Supreme Court Decision 2014Do1547: A person who violates Articles 129 through 133 of the Criminal Act, necessary confiscation or additional collection pursuant to Article 134 of the same Act.

by depriving of money, valuables or other property benefits provided or to be provided to him, the purpose of which is not to cause him to hold unlawful profits;

(c) If an illegal profit from property is acquired through the gratuitous lending of money or valuables, the illegal profit received by the offender shall be equivalent to the financial profit accrued therefrom;

As such, it is reasonable to deem that the subject of collection is not the money and valuables that have been lent without compensation, but the amount equivalent to the above financial profit.

On the other hand, the amount equivalent to the financial profit, which is subject to additional collection, should be objectively calculated, and the criminal is against the financial institution.

Where a loan is borrowed in a normal manner, such as receiving the loan, it shall be based on the loan interest rate to be borne, or the loan interest rate shall not be known.

on the basis of the statutory interest rate prescribed in the Civil Code or the Commercial Code according to the status of the defendant who has received money or valuables, the due date or place

Unless there is any circumstance to deem that the agreement on the amount of annual damages is deemed null and void, the money and valuables shall be deemed null and void until the agreed due date.

It shall be collected after calculating the number of financial gains acquired by borrowing the same. Furthermore, where there is no agreed maturity, the judgment shall be given.

There are no special circumstances, such as the actual repayment of the loan or the due date upon the borrower's request for the repayment.

amount of the financial profit acquired by borrowing money or valuables from the date of receipt to the date of the judgment of the court, and shall be collected additionally.

This is the case.

17) In accordance with the purport of the above Supreme Court decision, a loan to be borne by the defendant when the defendant obtained a loan of KRW 100 million from a financial institution.

In this case, there is no data to know the rate, the financial gains earned by the defendant at the statutory rate in civil law shall be calculated.

18) The lower court found the Defendant not guilty on this part of the facts charged, but did not appeal against it by the prosecutor.