2014Gohap321 Bribery

A person shall be appointed.

Park Jong-chul (Lawsuits) and Kim Young-chul (Trial)

Law Firm Na

[Defendant, Appellant] Jin-Jin-Jin Park

December 12, 2014

A defendant shall be punished by imprisonment for not less than one year and six months.

except that the execution of the above sentence shall be suspended for two years from the date this judgment becomes final and conclusive.

Facts of crime

The defendant is a person who receives a subcontract from a contractor or re-subcontracts from a subcontractor for telecommunications-related services ordered by the Korea Rail Network Authority (hereinafter referred to as the "Authority"), and B is a person who works for the System Information and Communications Headquarters from September 1, 2008 to June 30, 2013 and has been engaged in the management and supervision of orders, etc. for telecommunications-related construction works ordered by the Authority while working for the System Information and Communications Headquarters as the head of the communications team and the head of the department, etc., and is deemed a public official in the application of bribery under Article 4 of the Act on the Aggravated Punishment, etc. of Specific Crimes.

In general, when the contractor gives a subcontract to another company in the railroad-related construction project ordered by the public corporation, it is necessary to approve the management and supervisor of the department in charge of the public corporation, which is the ordering authority of the construction, and B, as the manager and supervisor of the telecommunications-related construction for services, could exercise de facto influence on the subcontract to the public corporation.

With the knowledge that the Defendant may exercise de facto influence over B in connection with subcontracting in telecommunications-related construction works ordered by the Corporation, (1) from September 2008 to January 201, 201 ***** by providing Hoho car to B free of charge, thereby obtaining pecuniary benefits of KRW 23,600,000 in the rental cost. (2) From February 201, 201 to July 201, 201, the Defendant provided B with rental car free of charge to B, thereby obtaining + + (3) property benefits of KRW 27,00,000 in the rental cost.

Accordingly, the defendant given a bribe to B in relation to his duties.

Summary of Evidence

1. The defendant's partial statement in court;

1. The first written statement of the Defendant at the prosecution (including C’s statement part)

1. Each prosecutor's statement concerning D;

1. The second written statement made by the prosecution against C;

1. Personnel records;

1. A copy of the register of automobiles;

1. The final written approval or the standard contract for technical services (design services);

1. Copies of written confirmation on deposits without passbook;

1. The investigation report (the report on the confirmation of the rental costs for the rental car and Bo Rexrothton vehicle used by B);

Application of Statutes

1. Relevant Article of the Criminal Act and the selection of punishment for the crime;

Articles 133(1) and 129(1) of the Criminal Act

1. Suspension of execution;

Article 62(1) of the Criminal Act (The following extenuating Conditions among the Reasons for Sentencing)

Judgment on the argument of the defendant and defense counsel

1. Summary of the assertion

A defendant offers a vehicle free of charge to B having de facto influence over the construction work ordered by the Corporation. However, the defendant may carry out a work unrelated to the construction work ordered by the Corporation, and the provision of a vehicle is based on private-friendly relationship with B, and it does not provide a vehicle in relation to his duties as described in the facts charged.

2. Determination:

A. Relevant precedents

The legal interest in the crime of bribery is the process of performing the duties of a public official, the trust in the society, and the purchase of a bribe. Since the bribery does not require a solicitation or an unlawful act in relation to his duties, there is no special solicitation in recognizing the bribe of money and valuables received, and there is no need to have an individual relation with an act of performance of duties. In addition, when a public official receives money and valuables or other benefits from a person who is subject to his duties, it is deemed that it is only an ordinary one, or it is clearly recognized that it is a personal-friendly relationship, and there is no relation with his duties unless there are special circumstances, such as where it is deemed that the public official's act of performance of duties is clearly recognized that it is due to an academic necessity. If a public official received money and valuables in relation to his duties, even if he received money and valuables in relation to his duties, such money and valuables shall be a bribe, and furthermore, it shall be deemed that the crime of bribery is a public official's trust in the process of performing his duties and trust in the society (see, e.g., Supreme Court Decision 900Do20.

(b) Basic facts

According to the evidence duly adopted and examined by this Court, the following facts are recognized.

1) B entered the Corporation on January 1, 2004, and thereafter from September 1, 2008, B took charge of ordering two-stage services for light-speed railroads. From March 16, 2009, B took charge of two-stage construction management for light-speed railroads ( through line tracks, trains, trains, services, transmission), and after promoting as the head of the department on January 1, 201, took charge of planning and management of radio communications and high-speed rail services.

2) On August 12, 2008, the Defendant purchased the said vehicle under the name of C (Share 99%) and C (Share 1%) (C), * * after purchasing the said vehicle, offered the said vehicle to B free of charge on September 2008, and on December 13, 2010, + + (Share 99%) in the name of C (Share 99%) and B (Share 1%) + (Share 1%) after purchasing the said vehicle, the said vehicle was provided to B free of charge on February 2, 2011.

3) D, the representative director of E (hereinafter referred to as “E”) purchased the mandatory insurance of the instant vehicle under its name from March 14, 2013 to March 14, 2014 + + + ＋ Hoschton vehicle.

4) On November 28, 2012, E was subcontracted to KRW 2,448,60,00, and KRW 000 for the train-free line system for the ○○ Construction Co., Ltd. to install the train-free line system for the erroneous high-speed railroads in South Korea. On November 30, 2012, E was subcontracted to KRW 1,477, 417, and 700 for the same construction from the company’s shares at the ○○ Technology Council.

5) E did not have an employee to perform the above installation work and employed C on a temporary basis on December 2012 only for the progress of the construction work, and C performed the above installation work as a field director.

6) On April 2012, the Defendant: (a) sought D’s representative director of E; and (b) obtained a successful bid from ○○ Construction, the Defendant would allow E to receive a subordinate contract for the train radio system construction project for the South-west High-speed Railroad, which is ordered immediately; (c) stated that the cost would be necessary for E to participate in the successful bid process of ○○ Construction; (d) received a total of KRW 19,000,000 from D six times from May 2, 2012 to December 18, 2012; and (e) received a subcontract from ○○ Construction on condition that E receives the difference between the contract amount and the construction cost actually invested from 85% from E to 19% from the actual input.

C. Determination

In full view of the above facts and the following circumstances acknowledged by the evidence of this case, the defendant is sufficiently recognized as a person who is awarded a subcontract for the Corporation’s telecommunication-related construction work from the contractor or sub-subcontracted by the Corporation as a contractor and who manages and enables the Corporation’s telecommunication-related construction work order, etc. to provide a car free of charge in relation to his/her duties. Thus, the above assertion by the defendant and the defense counsel is not accepted.

1) ① In the prosecution, the Defendant was unable to receive a sub-subcontract, and the Defendant was engaged in the work together with other companies, and the Defendant was entitled to assist the Defendant’s company. The Defendant stated that the contractor may exercise influence even if he did not instruct the contractor to select a specific company as a subcontractor. The Defendant also stated that “B was in the position to exercise influence over the subcontract in the prosecution.” ② When entering into a subcontract, the contractor must obtain approval from the Corporation. ② In the case of entering into the subcontract, the contractor must obtain the approval from the Corporation. ③ B was performing the ordering work and the management and supervision of the construction work from September 2008 to June 2013; ④ In the case of E-mail discovered by another company, it is clear that the contractor and supervisor of the subcontracted project exercised de facto influence over the contractor and supervisor of the subcontracted project.

2) ① The Defendant demanded that E receive a subcontract by finding D, the representative director of E before receiving a subcontract from ○○ Construction, and thereafter, E actually received a subcontract for construction from ○○ Construction; ② the Defendant was paid the amount of profit by re-subcontracting construction from E; ③ the Defendant did not have the ability to perform the subcontracted construction from ○○ Construction; ③ the Defendant was employed as a temporary employee, according to the fact that E was employed as a temporary employee, it appears that the Defendant acquired profit by receiving a subcontract from ○○ Construction after receiving a subcontract from ○○ Construction, and then receiving a re-subcontract from ○○ Construction.

3) The Defendant and B continued to maintain a friendly relationship since the first ten years ago, but it is difficult to easily understand that the Defendant, who was faced with a situation in which he was unable to register himself as the owner of the vehicle due to bad credit standing, was to bear an amount exceeding 50 million won on his own and provide two new vehicles for about five years on the sole ground of a private friendly relationship. It does not seem that there was any special circumstance or economic surplus.

Reasons for sentencing

1. The scope of applicable sentences under law: Imprisonment for one month to 15 years; and

2. Application of the sentencing criteria;

[Determination of Type] Bribery

【No Special Convicted Person】

[Determination on the recommended Area] Imprisonment of 1 year and 6 months to 2 years and 6 months (basic area)

3. Determination of sentence: Imprisonment with prison labor for one year and six months, and two years of suspended sentence; and

The crime of this case infringes on fairness and fairness in the operation and management of railroads that require high safety by offering vehicles free of charge for about five years to the executive officers supervising the management and supervision thereof while executing the construction ordered by the Corporation by subcontracting or re-subcontracting the construction work. The crime of this case does not seem to be reflective, such as merely claiming that a vehicle was provided in private-friendly relations. In light of the motive and circumstance of the crime of this case, method, degree of infringement of legal interests, etc., it is necessary to punish the defendant strictly.

However, the fact that the defendant provided a vehicle free of charge and the circumstances leading up to the provision of the vehicle, and the primary offender who has no penal power, etc. shall be considered as favorable to the defendant, and all other circumstances shown in this case’s pleading, including the defendant’s age, character and conduct, environment, motive, means and consequence of the crime, shall be determined as ordered, taking into account all the circumstances shown in this case’s pleading, such as the circumstances after the crime.

Judge Yellow-dong of the presiding judge

Judges Cho Jong-soo

Judges Jeong-chul

1) E was awarded a sub-subcontract to the Defendant in the form of direct payment of E costs due to concerns over the Defendant’s advance return, etc., and C

It is employed as an employee and allowed C to conduct on-site management.