(영문) 광주지방법원 2018.1.17.선고 2017노2864 판결

The part of the judgment of the court below against Defendant A shall be reversed. Defendant A shall be punished by imprisonment with prison labor for two years and six months and by a fine for 100,000,000 won. Where Defendant A 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.

45,000,000 won shall be additionally collected from Defendant A. An order to pay the above fine in an amount equivalent to the provisional payment against Defendant A. All appeals filed by Defendant B and C are dismissed.

Reasons

1. Summary of grounds for appeal;

A. Defendant A

(1) misunderstanding of legal principles as to the consideration or business relationship, and mistake of facts

(A) Regarding promotion solicitation

It is true that Defendant A received KRW 20 million from Defendant A in the middle of June 2012.

However, the J has served for more than the continuous service period, and the total evaluation scores from among the persons subject to the relevant series of class were first judged, subject to which the deputy head is the chairperson of the Personnel Committee, and not only decided to be subject to promotion through deliberation and resolution by the Personnel Committee, but also Defendant A did not exercise any influence in relation to the promotion of J.

Therefore, the judgment of the court below which found Defendant A guilty of this part of the facts charged is erroneous by misapprehending the legal principles, or by misunderstanding facts, which affected the conclusion of the judgment, in spite of no relationship between the amount of KRW 20 million delivered by Defendant A and the duties of Defendant A.

(B) The payment of the price for T in relation to the cadastral resurvey project was made normally through due process, and Defendant A had no choice but to exercise any influence and there was no reason to exercise any influence with respect to the payment of the price.

Therefore, even though there was no relationship between the money delivered by Defendant A and the duties of Defendant A, the lower court’s judgment that found Defendant A guilty of this part of the facts charged is erroneous by misapprehending the legal doctrine or by misleading facts, thereby adversely affecting the conclusion of the judgment.

(2) misunderstanding of facts as to the intention of the crime of acceptance of bribe

(A) Regarding promotion solicitation

Defendant A was aware that L, which maintained a close-friendly relationship for 30 years, was a kind of political fund, to have been 20 million won or more for itself, and was unaware of the fact that the said money was related to the J’s solicitation for promotion. As such, Defendant A did not have been aware that he received money or valuables in relation to his duties.

(B) Concerning the cadastral resurvey project

Since Defendant A was unaware of the fact that the money held by Q Q was offered as a solicitation for the payment of the construction cost, Defendant A cannot be recognized as the intention of acceptance of bribe.

(3) Unreasonable sentencing

The punishment of the court below against Defendant A (the fine of KRW 100 million for three years and six months of imprisonment and fine of KRW 100 million for additional collection) is too unreasonable.

B. Defendant B

The sentence of the court below against Defendant B (the imprisonment of eight months, the suspension of the execution of two years, the probation one year, and the community service order of 120 hours) is too unreasonable.

C. Defendant C

The sentence of the lower court against Defendant C (the imprisonment for eight months, the suspension of the execution of two years, the probation one year, and the community service order 120 hours) is too unreasonable.

(d) A prosecutor;

The sentence of the court below against the defendant A is too unhued and unreasonable.

2. Determination

A. Judgment on Defendant A’s misapprehension of the legal principle or mistake of facts

(1) Determination on the assertion on the nature of remuneration or the duty relationship

(A) Regarding promotion solicitation

1) Bribery does not require a special solicitation to recognize the bribery of money and valuables received since the fair performance of duties by a public official, the trust in the society, and the non-purchase of the act of performing duties are protected, and it does not require any solicitation or unlawful act. Moreover, it is sufficient that money and valuables have been received in connection with the performance of duties and there is no need to have a quid pro quo relationship with an individual act or a quid pro quo relationship. Whether a certain profit gained by a public official constitutes an unjust profit with a quid pro quo relationship shall be determined by taking into account all the circumstances, such as the content of the relevant public official’s duties, the relationship between the public official and the provider, whether there is a special relationship between the parties, the degree of interest received, the process and timing of receiving the benefit, etc. In light of the fact that the bribery is protected by the benefit of a public official, which includes not only the official’s duty to receive the benefit but also the general duty to have an effect on the fairness of performing his duties, such as a public official’s official’s duty or duty to have an effect on the establishment of bribery (see Supreme Court Decision 20130Do14.7.21.

2) According to the evidence duly adopted and examined by the lower court and the first instance court, the following facts can be acknowledged.

① Defendant A is the head of K Gun with the authority to direct and supervise employees belonging to K in accordance with relevant statutes and to deal with matters concerning appointment, dismissal, service, disciplinary action, etc.

(3) In most cases, most of the continuous service of promotion is determined by the order of candidates for promotion. However, there were cases where a person eligible for promotion differently from the order in consideration of public opinion and various circumstances on candidates for promotion.

④ On July 3, 2012, the J, one of the candidates for continuous service, and Defendant B, one of its husband, committed with the intent of having the public officials belonging to the K-Gun who were scheduled to serve in the Republic of Korea prior to the second half of the year of the public officials belonging to the K-Gun, and having the Defendant A, who was the Gun of the Gun, requested promotion. The above money was delivered to Defendant C with the sum of KRW 20 million around May 31, 2012, and June 11, 2012. The above money was delivered to Defendant A through L during June 2012, in light of the aforementioned legal principles, in light of the following circumstances revealed in the above facts, Defendant A received KRW 20 million in relation to the duties of the Gun of the Gun. Accordingly, this part of the Defendant A’s assertion is without merit.

① The term “related to the duties” in the crime of bribery refers to all duties performed by the pertinent public official while serving as a public official in the position of the pertinent public official. The Defendant, who is the K-Gun, has the ultimate authority to approve the personnel affairs, such as promotion of public officials belonging to the K-Gun, and the above KRW 20 million is the money given in the name of a public official belonging to the K-Gun as a request for promotion by the J. A. A. A. The person who delivered the above KRW 20 million to L via Defendant C is Defendant B, and the husband of the J. who is the person subject to continuous service promotion. Furthermore, the time when the above money was given to Defendant A was left before the second half of 2012.

③ As long as the above KRW 20 million was given in relation to Defendant A’s duties, whether Defendant A actually exercised influence over the promotion of J does not affect the establishment of the crime of bribery.

(B) Concerning the cadastral resurvey project

In full view of the following circumstances recognized by the evidence duly adopted and examined by the lower court and the lower court, it is reasonable to view that Defendant A’s KRW 25 million delivered by Defendant A around April 25, 2015 and around April 25, 2016 as the money given in relation to Defendant A’s duties. Therefore, this part of Defendant A’s assertion is without merit.

1) At the time, Defendant A was in the position of the final approving authority for the payment of service costs for the cadastral resurvey project ordered by K Gun as the head of K Gun.

2) R, which delivers a sum of KRW 25 million to Defendant A via Q, is a director selected as a joint executor of the cadastral resurvey project with respect to the V districts and W districts ordered by the K-gun, and who actually operates the said company.

3) The time when the above KRW 25 million was delivered to Defendant A was the time before T was selected as the joint executor of the pertinent cadastral resurvey project and the service cost was paid.

4) Whether Defendant A actually exercised influence during the payment of service costs related to the cadastral resurvey project does not affect the establishment of the crime of acceptance of bribe.

(2) Determination of mistake of facts as to intention

(A) Regarding promotion solicitation

In full view of the following circumstances acknowledged by the evidence duly adopted and examined at the lower court and the lower court, Defendant A appears to have been fully aware of the fact that the said money at the time of receiving KRW 20 million from L in the middle of June 2012 was an unfair benefit in relation to the duties of promotion to J. Thus, this part of the allegation by Defendant A is without merit. 1) At the time of being investigated by the prosecutor of the prosecution, Defendant A stated that “A delivers the said money to the head of the Si, while receiving the request for promotion by J, I would receive the said money. I would like to say that “I would help you promote the J,” and that I would like to say that I would not be aware of the fact that I would like to know.” (Evidence No. 3151)

2) The Defendant A’s statement at the prosecutor’s office also stated that “L requested money while making a request, and before giving that money, I asked the author to promote the Grade 6 of J by telephone. After giving that call, I memory that I would have asked the author to promote the Grade 6 of J even when L money was brought to the author (Evidence No. 3152 pages).” It is consistent with the above L’s prosecutor’s statement (Evidence No. 3152 pages).

3) Defendant A led to the first trial of the lower court, which led to the confession of all the crimes including the intention on the crime of acceptance of bribe. While the said Defendant led to the confession of all the crimes to the lower court court’s judgment, and reversed his own confession at the trial, in light of the motive, reason, and circumstances leading to the reversal of the confession, the confession made by Defendant A in the lower court’s judgment is recognized as credibility.

(B) In light of the following circumstances acknowledged by the lower court, including the protocol of interrogation of a suspect about Q related to the cadastral resurvey, and the evidence duly adopted and examined by the prosecution, Defendant A was fully aware that each of the said money was an unfair benefit in relation to the cadastral resurvey work at the time of receiving KRW 25 million in total around April 25, 2015 and April 25, 2016. As such, Defendant A’s assertion on this part is without merit.

① The statement at Q Q’s prosecutorial office was received money from R, and reported to the Defendant A that Q received money from T, and the Defendant A again delivered the money to P according to the direction of the Defendant A, who entrusted the money to P.

② Defendant A led to a confession of all the crimes including the intention on the crime of acceptance of bribe on the first trial date of the lower trial. The said Defendant led to the confession of all the crimes up to the lower court’s judgment, and reversed his own confession at the trial time. However, in light of the motive, reason, and circumstances leading to the reversal of the confession, the credibility of the confession made by Defendant A in the lower court is recognized.

B. Determination on the assertion of unfair sentencing

(1) Determination on the grounds of unfair sentencing by both parties against Defendant A

In this case, each crime of this case constitutes a violation of the fairness of the execution of official duties and the trust in society by Defendant A, who is the head of local government, to receive a bribe in connection with his duties, and the quality of the crime is not good.

However, in full view of the circumstances of each of the crimes of this case, including the fact that Defendant A has no record of committing the same kind of crime, the fact that the above Defendant appears to have not caused any property related to money and valuables during the public office, and the fact that Defendant A is relatively old and health conditions are not good, as well as the circumstances after the crime, the lower court’s punishment against Defendant A is somewhat unreasonable and unreasonable. Thus, the Prosecutor’s assertion of unfair sentencing is without merit, and the Defendant A’s assertion of unfair sentencing is with merit.

(2) Determination on Defendant B’s assertion of unfair sentencing on Defendant B

In light of the various sentencing conditions shown in the records and arguments of this case, including the fact that the crime of this case was delivered a bribe to Defendant A, who is a personnel authority, through Defendant C, etc. under the pretext of the personnel solicitation for his wife, and the nature of the crime is not good, and the amount offered as a bribe also reaches a considerable amount, etc., it is deemed that the lower court’s punishment on Defendant B is unreasonable. Thus, the above assertion by Defendant B is without merit.

(3) Determination on Defendant C’s assertion of unreasonable sentencing on Defendant C

On the other hand, the crime of this case was delivered a bribe with respect to the duties of Defendant A, a head of the local government, upon the request of the branch, and its nature is not good. In full view of the circumstances, means and results of the crime of this case, the circumstances after the crime, the age, character and conduct of Defendant C, and various sentencing conditions as shown in the records and arguments of this case, such as the circumstances after the crime of this case, the age, character and conduct of Defendant C, etc., the punishment of the court below against Defendant C is unreasonable. Thus, the above assertion by

3. Conclusion

Therefore, since the appeal by Defendant A is well-grounded, pursuant to Article 364(6) of the Criminal Procedure Act, the part against Defendant A among the judgment below is reversed, and the appeal by Defendant B and C is again decided as follows. Since the appeal by Defendant B and C is without merit, it is dismissed in its entirety pursuant to Article 364(4) of the Criminal Procedure Act. It

[Judgment as to Defendant A]

Criminal facts and summary of evidence

The summary of the facts constituting the crime recognized by this court and the evidence related thereto are as shown in each corresponding column of the judgment of the court below, and thus, they are quoted in accordance with Article 369 of the Criminal Procedure Act.

Application of Statutes

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

Article 129(1) of the Criminal Act (Selection of Imprisonment) and Article 2(2) of the Act on the Aggravated Punishment, etc. of Specific Crimes (Concurrent Imposition of Fines)

1. Aggravation for concurrent crimes;

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

1. Detention in a workhouse;

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

1. Additional collection:

Article 134 of the Criminal Act

1. Order of provisional payment;

Article 334(1) of the Criminal Procedure Act