Defendant

Defendant and Prosecutor

Em-net houses (prosecutions) and stuffs (public trials)

Attorney Park Sang-hoon et al. and one other

Ulsan District Court Decision 2012Gohap155 Decided November 6, 2012

The judgment of the court below is reversed.

A defendant shall be punished by imprisonment for one year.

1. Summary of grounds for appeal;

A. Defendant

The defendant borrowed 180 million won from the non-indicted 1 to the non-indicted 1 with no interest, and obtained profits equivalent to the financial gains from the above money. However, the original nature of the defendant, who is the head of the land-building coordination cooperative due to the recovery of the claim by the non-indicted 1, as the head of the land-building coordination cooperative due to the recovery of the claim, and the defendant's father, was allocated to the non-indicted 1, who is the head of the land-building coordination cooperative of the non-indicted 1, and was assigned to the non-indicted 1, to the director, there was no need to borrow money from the non-indicted 1, because it was a plan to sell the apartment of △△△△△ and △△△△ apartment owned by the defendant for the purpose of moving it to the company, and there was no need to borrow money from the non-indicted 1. The non-indicted 1 suggested that "I would sell △△△△△ and borrow money from it on behalf of him."

In addition, while the court below judged that only the above 180 million won is a bribe but it is not possible to collect the above 180 million won in accordance with Article 134 of the Criminal Act on the ground that the value was not specified, it is improper to collect the above 180 million won in accordance with Article 48(1)2 and (2) of the Criminal Act.

(b) Prosecutors;

1) misunderstanding of facts and misapprehension of legal principles

The amount of KRW 180 million that the defendant received from Nonindicted 1 is not a bribe that is not a loan, because the defendant received without the intention of repayment, and Nonindicted 1 also received at the request of the defendant without the intention of return.

2) Unreasonable sentencing

The punishment sentenced by the court below (one year of imprisonment, two years of suspension of execution, additional collection of 180 million won) is too unhued and unreasonable.

2. Determination

A. Whether a KRW 180 million is a bribe

In the context of the crime of bribery, where a consignee claims that he/she has received money from the accepter but not received the money from the accepter, whether or not the accepter actually borrows the money shall be determined by comprehensively taking into account all the objective circumstances revealed by evidence, such as motive, reason for delivery, and method of receiving the money from the accepter, relationship between the accepter and the accepter, both duties and work experience, the need for borrowing the money, possibility of borrowing the money from the person other than the accepter, the amount and method of borrowing the money, the economic situation of the accepter and the amount of borrowing the money, the amount and method of financing the loan, the economic situation of the accepter, the amount of the loan, the amount of the loan, and the possibility of compulsory execution, etc. (see, e.g., Supreme Court Decision 201Do7261, Nov. 10, 2011; 2010Do12610, Feb. 4, 2010).

Examining the evidence duly adopted and examined in the court below and the court below, in light of the following facts: (a) the Defendant and the non-indicted 1 did not have personal-friendly relations to the extent that they borrow or lend a large amount of KRW 180 million or more; (b) the non-indicted 1 did not receive a loan certificate while lending the above money; and (c) interest or maturity did not have been determined; (d) the non-indicted 1 did not urge the payment of the above money; and (e) there was a statement that the investigation agency and the court below stated that the non-indicted 1 did not have any idea to receive the above money; (b) the Defendant used the above money as apartment purchase cost of KRW 127 million and used the remaining KRW 53 million for personal purposes without returning it to the non-indicted 1; (c) there was no doubt that the above money was given or received as a bribe other than the above money by the non-indicted 1; (d) the Defendant did not have any other motive to accept and receive the money in the form of the loan in question and there was no other evidence that the defendant did not have any motive to accept the above money.

Therefore, the judgment below to the same purport is just and the prosecutor's ground of appeal disputing this is without merit.

B. Whether a considerable amount of financial gains for KRW 180 million is related to the defendant's duties as the president of the partnership;

On June 30, 2010, the lower court and the first instance court acknowledged the facts or circumstances duly adopted and investigated by the evidence, namely, the Defendant taken office as the head of the association of △△△ District Land Partition Association (hereinafter referred to as “association”) and took overall charge of the affairs of the association, and cooperation was given to the Defendant and Nonindicted Co. 2 with the collection of the claim for construction cost against the association. The Defendant demanded that Nonindicted Co. 1 “I would have the right to receive KRW 180 million from the residents of the △△△△△ District, and I would have the right to ask for a house to be collected.” In so doing, Nonindicted Co. 1 would have borrowed the above money from the Defendant’s head of the association in order to recover the construction cost, and the Defendant would not have been able to receive the said money from the Defendant’s △△△△△△△△△△△△△△△△△△△△△△△△△△△△△’s assertion that he would have received the said money from the Defendant’s company.

C. Determination on the prosecutor's assertion of unfair sentencing

Examining the various sentencing conditions of the instant case, there are favorable circumstances for the Defendant, such as: (a) there is no criminal history exceeding the same kind and fine for the Defendant; (b) the Defendant was deemed as a public official under the law, not a public official; and (c) the Defendant appears to have reached the instant crime by taking advantage of the fact while performing the duties of the president of the association in accordance with

However, the crime of this case, although the defendant, as the head of the land association, should faithfully cooperate in the recovery of the claim for construction price against the association in accordance with the non-indicted 1's order so that it is not unreasonable in handling the affairs of the association which are linked with a large number of interests, and operated the association. In the process, the defendant demanded non-indicted 1 to provide for a large amount of interest and the maturity for payment, which is 180 million won or more, and received a bribe equivalent to the financial interest. Thus, the crime of this case is serious and criminality. The defendant reverses his statement several times from the investigation agency to the court, and denies the crime of this case, denies the crime of this case and does not reflect the mistake, and does not pay part of the above money, and continues to enjoy the unfair interest equivalent to the financial interest and without paying it, and considering various sentencing conditions as stated in the argument of this case, such as the defendant's age, character and behavior, family environment, motive for the crime, and circumstances before and after the crime, the prosecutor's allegation in this part of this appeal is justified.

D. Determination as to the Defendant’s assertion of additional collection

If the object of acceptance of a bribe is financial profit under a loan agreement, and such financial profit becomes a bribe itself, it cannot be forfeited or collected pursuant to Article 134 of the Criminal Act, and this does not belong to a person other than the defendant (see Supreme Court Decision 75Do3607, Sept. 28, 1976). Thus, the court below's determination on whether to confiscate or collect the above interest rate of 10 billion won can be applied to a loan of 201 billion won, not to a loan of 200 million won, since it does not belong to a person other than the defendant (see Supreme Court Decision 75Do3607, Sept. 28, 1976). Since the court below's determination on whether to confiscate or collect the above interest rate of 200 billion won can be applied to a loan of 201 billion won or more, it cannot be seen that the defendant was not subject to the above 201 billion won or more from a financial institution.

3. Conclusion

Therefore, since the defendant and prosecutor's appeal are well-grounded, the judgment of the court below is reversed in accordance with Article 364 (6) of the Criminal Procedure Act and it is again decided as follows.

The summary of facts constituting an offense and evidence recognized by this court is the same as that of the judgment below, and thus, they are cited in accordance with Article 369 of the Criminal Procedure Act.

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

Article 129 (1) of the Criminal Act, and Article 84 (Selection of Imprisonment)

1. Summary of the facts charged [Violation of the Act on the Aggravated Punishment, etc. of Specific Crimes]

On February 25, 2011, the Defendant had no money to seek a house from Nonindicted Party 1, as stated in the facts constituting an offense, in order to request for Nonindicted Party 1 to get a house to get a director because he/she is being able to take care of his/her children within the residents of △△ District. Accordingly, the Defendant demanded KRW 180,000 from Nonindicted Party 1 who consented to the said request and received a transfer of KRW 180,000 from Nonindicted Party 1 to the Agricultural Cooperative account in the name of the Defendant on February 25, 2011.

Accordingly, the defendant accepted the above 180 million won bribe with respect to the duties of the head of the land partition association deemed public officials.

2. Determination

As seen above, since there is no evidence to acknowledge that the above KRW 180 million was a bribe, the above facts charged constitute a case where there is no evidence to prove a crime and thus should be pronounced not guilty pursuant to the latter part of Article 325 of the Criminal Procedure Act. However, as long as the court found the defendant guilty of the crime of acceptance of bribe due to the number of financial gains and the number of financial gains within the scope of the same facts charged, the court

Judges Kim Jong-cheon (Presiding Judge)