(영문) 창원지방법원 2011.11.17.선고 2011고합93 판결

Defendant shall be punished by imprisonment with prison labor for seven years and by a fine of 150,000,000 won. If the Defendant fails to pay the above fine, the Defendant shall be confined in the workhouse for a period calculated by converting KRW 500,000 into one day.

182,597,790 won shall be additionally collected from the defendant.

To order the defendant to pay an amount equivalent to the above fine.

Reasons

Criminal facts

around July 2006, the Defendant was elected as a member of the 5th Kimhae-si and was working as a Si Council member of the Industrial Construction Committee from July 2010 to June 2010. The Defendant was working as the chairman of the 6th Kimhae-si Council from July 2010. The Defendant has the authority to inspect and investigate administrative affairs, such as the enactment and repeal of the Ordinance of the 6th Kimhae-si from July 2010, deliberation and confirmation of the budget, approval of the budget, acceptance and handling of petitions, etc., and the relevant public officials can attend the Council and ask questions and request necessary materials. As such, in a case, those who are in a position to visit the site and investigate and verify facts and request necessary measures, and are in a position to exercise de facto influence on the performance of affairs handled by the public officials of the 5th Kimhae-si. ○○ is a person who was in a position to obtain permission to collect earth and rocks from around July 2008 to the 10th Industrial Complex.

On January 2, 2008, the Defendant received or demanded KRW 192,597,790 in total over 15 times as shown in the annexed crime list, including the receipt of KRW 50 million in cash from 00,000, even though he knew that ○○○ offered it to the relevant public officials in relation to the operation of the ○ apartment management office located in ○○○dong, Kimhae-si and the procedure for approving the collection of earth and rocks in the future in relation to the procedure for approving the collection of earth and rocks in the parking lot. Accordingly, the Defendant received or demanded a bribe in relation to arranging matters belonging to other public officials’ duties by taking advantage of his status as a public official.

Summary of Evidence

1. Each legal statement of ○○○○○○○○○○, and ○○○○○○;

1. Each statement made by a witness 00, 00, and red ○○ in the first trial record;

1. Each statement made by a witness 00, leap00, and new00 in the second trial records; and

1. 5th suspect examination protocol of the accused to the prosecution, and the 8th suspect examination protocol of the prosecution (including the substitute part of the wrong 00);

1. Seizure protocol (No. 154 No. 154 of the evidence list);

1. A copy of each protocol of examination of suspect and statement by the prosecutor about ○○○○ (including additional list of evidence, and the cross-examination part with the defendant);

1. A copy of each statement of leap○○ and NewO;

1. A copy of the statement ○○; and

1. Each investigation report [the confirmation of contact point of ○○○○○ recorded in the business pocket book of ○○○○○, the date of issuance of 50,00 won tickets, attach a detailed statement of cash receipts and disbursements of 2010 prepared by ○○○○○○○○○, attach a license for soil erosion and an application for an industrial complex, attach an investment intent and a written application for business approval received in Gyeongnam-do, attach an investment intent and a written application for business approval, attach a letter of intent to make an investment, reply for business application, etc., deliver money to ○○○○○○ and attach a temporary cash withdrawal, and attach a copy of the cash withdrawal, - a copy of the outward storage document of ○○○○○○○○○, a (ju), a copy of the monthly accounting log - 00,000 won check delivery to ○○○○○○○○○○○○○○○, a copy of the account output, an application form, a copy of the credit card book-2070, a copy of the entrance-27.

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

Article 2(1)1 of the Act on the Aggravated Punishment, etc. of Specific Crimes and Article 132 of the Criminal Act (Generally, Selection of Imprisonment and Imposition of Fines pursuant to Article 2(2) of the Act on the Aggravated Punishment, etc. of Specific Crimes)

1. Discretionary mitigation;

Articles 53 and 55(1)3 and 65(1)6 of the Criminal Act ( considered in favor of the reasons for sentencing below)

1. Detention in a workhouse;

Articles 70 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

Of the charges of innocence, the part of the charge is about KRW 2 million in cash received by the defendant together with KRW 3 million in cash listed in No. 13 of the crime sight table.

The summary of this part of the facts charged is that the defendant received a solicitation from OO to the effect that he will help the defendant obtain an approval for collection of earth and rocks as an industrial complex, and that he received two million won in cash by receiving two bags containing three million won in cash and two million won in cash within a passenger car near the office.

However, according to the OC0 investigation agency and the statements in this court, two bags containing 3 million won in cash and 2 million won in each of them are delivered to ○○○. Thus, in this case where there is no evidence to prove that the above 2 million won was given or received in return for the referral of the defendant, the defendant cannot be deemed to have committed the crime of delivery of the third person's bribery under Article 132 of the Criminal Act, apart from the fact that the crime of delivery of the third person's bribery is established.

Therefore, the above facts charged should be pronounced not guilty under the latter part of Article 325 of the Criminal Procedure Act because it constitutes a case where there is no proof of a crime. However, as long as the court found the defendant guilty of a violation of the Act on the Aggravated Punishment, etc. of Specific Crimes

Judgment on the argument of the defendant and defense counsel

1. Summary of the assertion

Of the facts charged, in the case of Nos. 1, 2, 3, and 4 of the annexed Table 1, 2, 3, and 4, the fact that the above money and valuables were received was recognized as political funds, but was not the pretext of political funds. 2. 5, 6, 7, 8, 10, and 13 of the above list of crimes was not received: In the case of No. 9 of the above list of crimes, there was only received 12,000 won as political funds related to the election at the meeting of Kimhae-si. (4) The above list of crimes was received as 11 of the list of crimes, but it was received in cash. 5: The above list of crimes was 5: The fact that the above entertainment was received in the case of No. 12,14 of the list of crimes under the above law, but the fact that the above entertainment was not received, 6. 6, 8, 10, and 13.

2. Determination

A. The Defendant denies or contests the receipt of money in cash among the facts charged. The following circumstances acknowledged by the above evidence are clearly stated in the investigation agency and this court: ① this statement from the third suspect examination procedure recognizing the grant of money to the Defendant is not only concrete but also consistent with important parts; ② The informant of this case also has detailed statements concerning the delivery process 5 and 6 of the attached list of crimes, which he directly delivered, in light of the fact that ○○○○○○○○'s book prepared at the time of the statement and the fact that ○○○○○○'s book was prepared with an objective support for the delivery process; ③ The Defendant's statement and its key part of the attached list of cash receipts and disbursements are consistent with the above ○○○○○○○○'s book prepared with the Defendant's book prepared with the Defendant's book prepared with the Defendant's book prepared with the Defendant's statement of cash receipts and disbursements, ③ The Defendant's each of the above 7 or 111 of the above list prepared with the Defendant's book prepared with the Defendant's book prepared with the Defendant's ○○○○○'s book prepared.

B. Whether the crime of good offices and bribery was established

(1) Facts of recognition

According to the above evidence, the following facts are acknowledged:

(A) On May 31, 2006, the Defendant was elected as the 5th Kimhae-si, and was in office as a Si Council member from July 1, 2006, and was in office as a City Council member from June 30, 2010, and was in office as the branch of the Industrial Construction Committee branch from June 30, 2010. On June 2, 2010, the Defendant was elected as the president of the 6th Kimhae-si Council on July 1, 2010 and was in office until now.

(B) On February 207, 2007, in order to collect earth and rocks while running a construction business in the city, ○○○ acquired the earth and rocks from ○○○○, a company with preparation for the permission to collect earth and rocks related to the construction work of the 2007, 5, 30, and Busan New Port (hereinafter referred to as “CO○”) from ○00 and ○○. The earth and rocks project began with the purpose of changing the form and quality of the land in which the earth and rocks were collected during the permission period or making profits arising from the approval of the industrial complex. The earth and rocks project began with the aim of collecting earth and rocks with the aim of obtaining approval of the industrial complex.

(다) 오DC)은 |||||| 의 이사로 있던 오.00을 통해 2007. 7.경 김해시의원인 피고인을 처음 만나게 되었는데, 오○○(피고인과는 2002년경 최○○의 김해시장 선거캠프에서 알게 된 사이이다)은 오○○이 앞으로 김해시에서 사업을 하는 데 피고인이 많은 도움을 줄 것이라는 취지의 이야기를 하며 오○○에게 피고인을 소개시켜 주었다.

(D) Subsequent to 00 and the Defendant came to know of the fact that the Defendant was naturally affiliated with the Industrial Construction Committee, as well as talks about the Defendant’s career and political distribution division, etc., and the Defendant came to know of the fact that the Defendant was preparing for the collection of earth and rocks (at the Defendant’s house, the prior review of factors influencing the Defendant’s application for the permission to collect earth and rocks was seized at the above company’s office, and the Defendant stated in the Defendant’s pocketbook in 2007 that “O○○○○○’s debate 1,00,000,000 in the Defendant’s pocketbook in 207, stated that there was a fact that ○○○ was an infant in the Industrial Complex Corporation 1,000,000,000,000,000 won * 00,0000,000,0000,000,0000,000,000,000,000).

(바) 당초 위 토석채취허가 내용은 2008. 7. 16.부터 2012. 12. 31.까지 토사와 토석 약 264만! 를 채취하는 것이었는데, 막상 채취를 해 보니 토사가 많지 않고 토석의 경우 납품단가를 맞출 수가 없어 납품이 원활하게 되지 않았고, 이로 인하여 회사 자금난이 심해지자 오○○은 2009년경부터 나전토취장에 관하여 산업단지 승인을 받을 계획을 세우고 ▣▣▣▣▣▣▣ 주식회사(이하 '▣▣▣▣▣▣▣'이라 한다)로부터 자금을 투자받고 그를 시행사로 하여 산업단지승인절차에 착수하게 되었다.

(사) 오○○은 ▣▣▣▣▣▣▣▣ 명의로 2010.2.25. 경상남도에 나전토취장 일대 356,500m에 대하여 '나전3 일반산업단지 조성사업' 투자의향서를 제출하였다. 경상남도는 2010. 3. 5. 각 실과와 김해시 등 유관기관에 투자의향서 검토 협의 요청을 보내 의견을 수렴한 결과, 김해시(도시계획과)에서 대상지가 대부분 보전관리지역으로서 도시 장기발전계획에 부합하지 않는다는 의견을 제시하고, 도 내부에서 인접 개별 입지공장을 포함한 산업단지계획을 수립할 필요가 있다는 의견과 시행사의 재무제표상 사업수행능력이 의문시된다는 의견 등이 제시되어 2010. 5. 25. '재검토' 의견으로 시행사 측에 검토결과를 회시하고, 이를 김해시에도 통보해 주었다.

(h) On June 11, 2010, 200, 11, 200 submitted an application for approval of an industrial complex plan to Gyeongnam-do. However, on June 18, 2010, 200, Gyeongnam-do submitted an application for approval of an industrial complex plan after prior consultation with Kim Jong-do and received the application after prior consultation on November 1, 2010. However, on June 18, 201, Gyeongnam-do sent the documents related to urban development and notified this at the time of Kimhae-do. (i) A general industrial complex is a 300,000 square meters or more in size, the YO is a Do governor, Gyeongnam-do, and the City Mayor is an approved authority if the area was less than 284,037 meters in size, and YO had been reduced to 284,037 meters in size at the time of application, and a public official was still receiving an application for urban development plan after consultation with the defendant Park.

(j) On the other hand, on October 20, 2010 and around October 20, the Defendant asked ○○○ to post a telephone to the public official of Kimhae-si and to put him into the road access to the Kimhae-ju General Industrial Complex at the Nao○○’s Nao○○.

(k) On the pretext of linen with the Defendant, 00 stated the following purport at the investigative agency and this court. In other words, upon the Defendant’s demand from the Defendant that the Defendant be required to engage in political activities, such as election funds, or to repay a debt with respect to the sentence, the said money as indicated in the facts charged was created. In order to carry out the collection of earth and rocks business, there is a need for a flexible politician or public official in the process of approving an industrial complex after the earth and sand gathering, and it appears that the Defendant would have been able to actively assist the Defendant in carrying out the business in the future if he was able to see the Defendant as near the Defendant, and that he would have been able to help the Defendant go back to the future. In particular, it is thought that his own business purpose was an industrial complex, and that the Defendant would not have been able to help him more than 0 if the Defendant was to go up to 100,000 won at the time of election, and that 10,000 won would not have been changed to his own business plan.

(other) Meanwhile, the sum of money and valuables received or demanded by the Defendant (hereinafter “the money and valuables in this case”) is KRW 132,257,790, and KRW 62,340,000 prior to the election of the Speaker when classifying the money and valuables into the points of the election of the Speaker (hereinafter “the money and valuables in this case”) (the money and valuables in this case are deemed to have been requested according to the method of transfer, in light of the following: (a) the amount of KRW 10,000,000 on February 17, 201; (b) the details leading up to the receipt of money and valuables in the previous case; and (c) the statement made by the Defendant at the prosecutor’s office, the amount of money and valuables in this case

(2) The legal principles on the relationship between political funds and bribe and the acceptance of bribe

Even if money and valuables are given and received under the pretext of election funds, it does not lose the nature of a bribe as long as it has an substance as consideration for a political official’s act of performing his/her duties, and the crime of bribery is subject to the legal interest and protection of the law directly by the public official’s duty and trust in society. As such, the crime of acceptance of bribe is established when the number of money and the duties of the public official are in a quid pro quo relationship, and there is no need to consider the existence of solicitation and the special relationship between the individual act of performance, and there is no need to specify the duty (see Supreme Court Decision 2007Do4956, Aug. 23, 2007).

The term "requesting a bribe in connection with a referral of matters belonging to the duties of other public officials" in Article 132 of the Criminal Code means a bribe under the pretext of arranging matters belonging to the duties of other public officials.

Although the act requiring a bribe does not necessarily require specific specification of the contents of a public official who is the other party to the good offices or his/her duties, in order to establish the crime of demanding good offices, matters to be arranged are matters belonging to the duties of other public officials, which are related to the good offices of the other public officials, and the name of the request for a bribe must be specified to a certain extent. The mere fact that, if the other party appears well to the person requesting a bribe, it is limited to the extent that he/she has a vague expectation to the extent that he/she would be able to receive a certain help or would not cause any damage, and the person demanding a bribe may not be deemed to have established the crime of demanding good offices solely on the basis that the other party demanded a bribe while deeming that he/she had such expectation. On the other hand, the act of good offices here is nothing more than that of the future, and therefore, there is no need to establish any pending issue to be resolved by the good offices at the time of demanding a bribe to establish the crime of demanding good offices (see, e.g., Supreme Court Decision 2009Do3924).

(3) Determination on the instant case

The following circumstances revealed based on the facts acknowledged above, that is, ① the defendant was affiliated with the Industrial Construction Committee at the 5th Kimhae-si Council, and the 6th Kimhae-si was elected as the chairperson at the 6th Kimhae-si Council and the public official belonging to Kimhae-si in charge of the collection of earth and rocks within

In light of the fact that ○○○○ and the Defendant were in a position to exercise de facto influence on the administration of affairs of the Defendant, and the fact that ○○○○ and the Defendant introduced and came to know of the Defendant’s business assistance in the collection of earth and rocks at the time of Kim Sea, which is the front time of ○○○○○○ and the Defendant’s death, and that it would have been sufficiently known of the Defendant’s above status or erroneous business plan to the extent that it would have been natural and adequate. From the 300th point of view, it is deemed that the primary business of collecting earth and rocks was within an industrial complex approval. Even if there was no practical help from the Defendant in the process of permission for the collection of earth and rocks, it would have been difficult to obtain permission for the collection of earth and rocks from the Defendant at the time of the first time due to the fact that ○○ and the Defendant did not have any influence on the establishment of an industrial complex, and that it would have been difficult for the Defendant to receive money and rocks from the Defendant during the process of collecting earth and rocks.

The reason for sentencing is that the defendant, who has a significant influence in the local community to the extent that he will be elected as the chairperson at the sixth City Council of the local council, was in charge of monitoring and supervising the performance of duties by local administrative officials including the head of local government. However, in the case of some money and valuables, the defendant was first demanded by the donor, and the total amount of the money and valuables acquired by the defendant reaches KRW 200 million. In fact, the defendant's act of accepting the bribe is a highly bad behavior that is still ongoing in our society, and the defendant's act of accepting the bribe is likely to collapse the people's trust and seriously doubt the fairness of the duties of the general public. However, it is inevitable to sentence the defendant heavyly considering the fact that the defendant denies the crime, and the defendant's application for general industrial complex was rejected, and thus the defendant was not subject to punishment due to unlawful results, circumstances other than the defendant's motive and punishment, and other circumstances that have not reached the age of punishment, the defendant's motive and punishment following the crime of this case.