Defendant 1 and four others

Defendant 1 and one other and the prosecutor

Kim Jong-chul

Law Firm Anyang, Attorneys Lee Jong-soo et al.

Suwon District Court Decision 2008Gohap646, 2009Gohap113 (Joint Judgment) Decided June 12, 2009

Seoul High Court Decision 2009No1648 Decided December 11, 2009

Supreme Court Decision 2010Do370 Decided April 29, 2010

1. Of the judgment below, the part against Defendant 1 (joint Defendant 1 of the judgment of the court below), among the guilty part and the part against Defendant 3 and 4 on the receipt of property in breach of trust due to the transfer of the right to sell in lots against Defendant 3 and 4, the part on the receipt of property in breach of trust against Defendant 2 (joint Defendant 2 of the judgment of the court below), and the part on the receipt of property in breach of trust due to the transfer of the right to sell in lots against Defendant 3 and 4, and the part on the receipt of property in breach of trust against Defendant 5, among the part against Defendant 4, and the part on the receipt of property in violation of trust due to the acquisition of the right to sell in lots against Defendant 5, respectively.

2. Defendant 1 is punished by imprisonment for 5 years, by imprisonment for 2 years, by imprisonment for 3 years and by imprisonment for 4 months, by imprisonment for 8 months and by imprisonment for 5 months, respectively.

3. Provided, That the execution of each of the above punishments shall be suspended for three years for Defendant 2, for two years for Defendant 3 and Defendant 4, for one year for Defendant 5, from the date this judgment became final and conclusive, and for one year for Defendant 5.

4. 70,1610,000 won from Defendant 3, 20 million won from Defendant 4, and 10 million won from Defendant 5 shall be collected respectively.

5. Of the facts charged in the instant case against Defendant 1, the facts of the fraud by defraudation of KRW 30 million against Nonindicted 5 and the fraud by defraudation of KRW 220 million against Nonindicted 6 are not guilty.

1. Object of the political party deliberation;

A. As to Defendant 1

The lower court found the Defendant guilty of both the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud) (hereinafter referred to as the "Fraud") among the facts charged in the instant case, and found the Defendant guilty of both the fact that the Defendant violated the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (hereinafter referred to as the "Violation of the Aggravated Punishment Act (Fraud),

As to the offering of a bribe among the guilty portion, the prosecutor found the defendant guilty of the non-guilty portion of the offering of a bribe and the trial prior to remanding the case (However, the prosecutor found the defendant guilty of the offering of a bribe equivalent to 50 million won in lieu of the fact that the defendant offered a bribe in exchange for the offering of a bribe to non-indicted 7 in the trial prior to remand the case of the offering of a bribe, and found the defendant guilty of the offering of a bribe equivalent to the interest equivalent to 50 million won in lieu of the fact that the defendant offered a bribe in exchange for the offering of a bribe in the case of the offering of a bribe in the case of the offering of a bribe in the case of the offering of a bribe in the case of the offering of a bribe, which is not guilty (However, the portion of the offering of a property benefit equivalent to 324 million won in the case of the offering of a bribe in the case of the offering of a bribe in the case of the offering of a bribe in the first trial prior to remand the case of the offering of a bribe).

As to the offering of a bribe among the guilty portion, the prosecutor's appeal against the non-guilty portion (excluding the non-guilty portion in the reason) was defective; the court of final appeal rejected the defendant's assertion in the grounds of appeal as to the offering of a bribe among the conviction portion through the remanding judgment; the prosecutor's appeal against the non-guilty portion is all dismissed; while reversed ex officio the part concerning the offering of a bribe through the transfer of the right to sell in lots to the defendant 3 and 4, and reversed the remainder of the conviction portion in the concurrent relation with the defendant 3 and 4

Accordingly, among the facts charged in the instant case against the Defendant, the Defendant was found not guilty of the remainder of the property in breach of trust except for the property in violation of trust due to the transfer of the right to sell in lots against the Defendant 3 and 4. Of the guilty portion, the bribe in violation of trust was reversed on the grounds that the property in violation of trust due to the transfer of the right to sell in lots against the Defendant 3 and 4 and the concurrent crimes under the former part of Article 37 of the Criminal Act were reversed and remanded to the court of final trial. However, the court of final appeal rejected the Defendant’s assertion in the grounds of final appeal as to this part, and the rejection was made in the final appeal at the same time with the decision of the court of final appeal. Thus, the Defendant cannot dispute this part, and the court of appeal that was remanded cannot make a decision inconsistent with this Opinion (see Supreme Court Decision 2005Do1247, Oct. 28, 2005).

Ultimately, the subject of the judgment after remanding the defendant to the court is the violation of the special law (Fraud), the fraud, the use of the private document, the use of the above investigation document, the use of the bribe and the transfer of the right to sell to the defendant 3 and 4. However, the subject of the judgment is the property of breach of trust due to the transfer of the right to sell to the defendant 3 and 4 among the judgment below.

B. As to Defendant 2

The lower court found the Defendant guilty of both the violation of the Special Act on the Aggravated Punishment (Fraud), the fraud, and the offering of a bribe, among the facts charged in the instant case, and acquitted the Defendant of all the remainder of the giving of a bribe.

As to the guilty portion, the prosecutor found the defendant guilty of the non-guilty portion of the appeal, and the trial prior to remanding the case of the offering of a bribe (However, the prosecutor found the defendant guilty of the offering of a bribe equivalent to the interest on the 50 million won in lieu of the offering of a bribe in exchange for the offering of a bribe at the trial prior to remanding the case of the offering of a bribe, and found the defendant guilty of the offering of a bribe equivalent to the interest on the 50 million won in lieu of the offering of a bribe at the trial prior to remanding the case of the offering of a bribe), and found the defendant guilty of the offering of a bribe in breach of trust due to the transfer of the right to sell in lots to the defendant 3 and 4 (However, the part of the offering of property profits equivalent to the 324 million won in the transfer of the right to sell in lots to the defendant 4 was not guilty on the grounds), the part of the violation of a special law (Fraud), and all of the remainder of the giving of a bribe and the violation of trust.

With respect to the portion not guilty (excluding the portion not guilty in the grounds of appeal), the court of final appeal reversed ex officio the part on the charge of giving property in breach of trust due to the transfer of the right to sell the goods to Defendant 3 and 4 among the convicted portion through the judgment of remand, and reversed the part on the charge of giving property in breach of trust against Defendant 5 among the acquitted portion by accepting the prosecutor's appeal, and reversed the part on the charge of giving property in breach of trust against Defendant 5 among the convicted portion in the concurrent relation under the former part of Article 37 of the Criminal Act, the part on giving property in offering property in breach of trust against Defendant 5 was reversed together with the part on the charge of offering property in breach

Accordingly, among the facts charged in this case against the defendant, it is confirmed not guilty of both the violation of the special law (Fraud) and the fraud. Among the facts charged in this case, it is confirmed not guilty of all of the part excluding the fact of giving property in breach of trust due to the transfer of the right to sell in lots to the defendant 3 and 4 and the fact of giving property in breach of trust to the defendant 5. Thus, it is confirmed not guilty of all of the remainder excluding the fact of giving property in breach of trust due to the transfer of the right to sell in lots to the defendant 5. Accordingly, the subject of the judgment after remanding the defendant to the defendant is the point of giving property in this case

C. As to Defendant 3

The lower court rendered a not guilty verdict on the charge of taking property in breach of trust due to the Defendant’s acquisition of the right to sell in lots, and found the prosecutor guilty of taking property in breach of trust by accepting the prosecutor’s appeal against defects in appeal and the trial prior to remand.

Since the defendant's appeal was defective and the appellate court reversed the part of the defendant's appeal, the subject of the trial after remanding the defendant to the court is the violation of trust due to the acquisition of the defendant's right to sell in lots.

D. As to Defendant 4

The lower court rendered a not guilty verdict on the charge of taking the Defendant’s property in breach of trust, and found the prosecutor guilty on the charge of taking the Defendant’s property in breach of trust by accepting the prosecutor’s appeal against the defect of appeal and the prosecutor’s appeal before remanding the case (However, the lower court acquitted the Defendant on all of the charges of taking the Defendant’s property gains equivalent to KRW 324 million among the charges of taking the Defendant’s property in breach of trust due to acquiring the Defendant’s right to sell), and acquitted all of the remaining charges of taking the property in breach

As to the guilty portion of the defendant, the prosecutor's appeal against the acquittal portion (excluding the acquittal portion of the reason) was dismissed, and the appellate court accepted the defendant's appeal through the remand judgment, and reversed the part on the charge of taking the defendant's property in breach of trust due to the acquisition of the right to sell in lots, and all the prosecutor's appeal against the remaining violation of trust.

Accordingly, since the part of the charges of this case against the defendant, except the part of the violation of trust due to the acquisition of the defendant's right to sell in lots, the defendant's right to sell in lots is judged not guilty, the subject of the trial after remanding the case to the defendant is the part of the charge of this case's violation of trust due

E. Defendant 5

The lower court acquitted the Defendant on the charge of taking property in breach of trust due to the Defendant’s KRW 10 million, and found the Prosecutor not guilty on the charge of taking property in breach of trust, and found the Defendant not guilty on the charge of taking property in breach of trust by dismissing the Prosecutor’s appeal.

In other words, the prosecutor's defects in the appeal and the final appeal accepted the prosecutor's appeal and reversed the part against the defendant. Thus, the subject of the trial after remanding the defendant to the court is the subject of breach of trust due to the defendant's 10 million won water.

2. Determination on the grounds for appeal

(a) Ex officio destruction;

(1) As to Defendant 1

After remanding to the defendant, the subject of the trial after the remand of the case is the violation of the special law (Fraud), fraud, the use of the private document, the use of the above investigation document, the use of the bribe offering, and the transfer of the right to sell it to the defendant 3 and 4. The prosecutor changed the facts charged in exchange for the fact that the prosecutor provided the offering of the bribe to the non-indicted 7 for the offering of the bribe to the non-indicted 50 million won at the trial before remanding the case, and changed the facts charged in exchange for pecuniary benefits equivalent to the interest of 50 million won from the fact that the prosecutor provided the offering of the bribe to the non-indicted 7 at the trial before remanding the case. The fact that the offering of the bribe to the non-indicted 7 is the violation of the special law (Fraud), the violation of the special law (Fraud) due to the transfer of the right to sell in lots to the defendant 3 and 4, and the part of the fraud is the part of the charge. After remanding the case, the prosecutor applied for the amendment after changing the indictment.

Therefore, since the part of the judgment of the court below which is subject to the judgment of the court after remanding the case cannot be maintained as to the violation of the Act of the Specific Economic Crimes (Fraud), fraud, the use of private document, the use of the above investigation document, the use of the bribe offering, and the transfer of the right to sell in lots to the defendant 3 and 4 among the non-guilty part, the part of the judgment below which is subject to the judgment of the court below after the remand cannot be maintained any further, it shall be reversed ex officio in accordance with Article

However, the Defendant’s ground of appeal on the mistake of facts as to the offering of a bribe to Nonindicted 8 for which the facts charged have not been changed in exchange despite the existence of the aforementioned ground of ex officio destruction is still subject to the judgment after remand.

(2) As to Defendant 2

After remanding to the Defendant, the subject of the trial after the remand of the case is the fact that the bribe offering among the facts charged of the instant case, the fact that the transfer of the right to sell in lots against Defendant 3 and Defendant 4, and the fact that the public prosecutor provided property benefits equivalent to the interest on KRW 50 million in the case of the offering of the bribe at the trial before remanding the case, and the fact that the public prosecutor provided property benefits equivalent to the interest on KRW 50 million in the case of the offering of the offering of the bribe at the trial before remanded the facts charged to the exchange of the facts charged, and the fact that the transfer of the right to sell in lots against Defendant 3 and Defendant 4 was subject to the permission of the trial before remanding the case. In the trial after remanding the case, the public prosecutor applied for a modified amendment of the indictment to the facts charged, and the judgment after remand the case was changed by allowing it.

Therefore, the part of the judgment of the court below which is subject to the judgment after remanding the case cannot be maintained as to the charge of giving a bribe and the charge of giving a bribe to Defendant 3 and 4 due to the transfer of each right to sell the bribe to Defendant 4 and the charge of giving a property in breach of trust to Defendant 5 is reversed ex officio in accordance with Article 364(2) of the Criminal Procedure Act.

However, despite the above ex officio reversal grounds, the prosecutor's ground of appeal on the mistake of facts as to the receipt of evidence in breach of trust against Defendant 5 for which the facts charged have not been changed in exchange is still subject to a final judgment after remand.

(3) As to Defendant 3 and 4

After remanding to the Defendants, the subject matter of the trial after the judgment of the court below is the property in breach of trust due to the acquisition of the right to sell in lots by the Defendants. In the trial before remand, the prosecutor applied for changes in the indictment and permitted the trial before remanding the case by filing an application for changes in the indictment on the property in breach of trust due to the acquisition of the right to sell in lots by the Defendants. Even after the remanding the case, the prosecutor applied for changes in the indictment on the property in exchange for the property in breach of trust due to the acquisition of the right to sell in lots by the Defendants, and the subject matter of the trial after the remanding the case is changed by the court after the remanding the case. Thus, the part of the judgment of the court below against Defendant 3 and the part against Defendant 4 subject to the judgment of the court below on the property in violation of trust due to the acquisition of the right to sell in lots can no longer be maintained. Accordingly, this part shall be reversed ex officio

B. Summary of grounds for appeal

(1) misunderstanding of facts as to the offering of a bribe to Nonindicted 8 by Defendant 1

Since Defendant 2 received instructions from Defendant 2 in giving a bribe to Nonindicted 8, and did not participate in the offering of a bribe to Nonindicted 8, the judgment of the court below which found Defendant 2 guilty of the offering of a bribe to Nonindicted 8 is erroneous in the misapprehension of legal principles.

(2) Prosecutor's assertion of misconception of facts as to the prosecutor's charge of giving property in breach of trust to Defendant 5, and Defendant 5's charge of taking property in breach of trust

Defendant 2 is the operator of Nonindicted Co. 3, who had been implementing the construction of a new building on the ground of “○○○○”, and Defendant 5 is the director of the asset management team of Nonindicted Co. 2, who was awarded a contract for the construction of the building on the said main complex. In order for Nonindicted Co. 2 to receive payment of the old prize money and construction cost claims against Nonindicted Co. 3, who had been implementing the construction of the said main complex building, the lower court acquitted Defendant 2 of this part of the charges of breach of trust and mistake of facts against Defendant 5, on the ground that the ownership of the unsold apartment and commercial building was transferred, instead of taking over the ownership of the apartment and commercial building, and the appraisal of the apartment and commercial building was exempted from the debt equivalent to the amount of money. Defendant 2 requested to request the Nonindicted Co. 3 to make the appraisal favorable to the said Nonindicted Co. 3, and remitted KRW 10 million to the deposit account of Defendant 5’s wife.

C. Determination

(1) misunderstanding of facts as to the offering of a bribe to Nonindicted 8 by Defendant 1

In light of the defendant's status and role as the head of Ansan-si (hereinafter omitted) non-indicted 1's association (hereinafter "the association of this case") and the head of the re-chief in charge of the fund management of the non-indicted 10 corporation who entered into a business service contract between the association of this case and the association of this case, the court below can be deemed that the defendant delivered merchandise coupons to non-indicted 8, who is a public official in charge of the defendant's own responsibility, instead of issuing merchandises equivalent to KRW 1.8 million in the name of the defendant 2. Thus, the court below found the defendant guilty of the charge of giving merchandise coupons equivalent to KRW 1.8 million to non-indicted 8 as a bribe. Thus, the court below did not err by misapprehending the facts.

(2) Prosecutor's assertion of misconception of facts as to the prosecutor's charge of giving property in breach of trust to Defendant 5, and Defendant 5's charge of taking property in breach of trust

(A) Relevant legal principles

In the crime of giving and receiving property in breach of trust, "illegal solicitation" refers to a solicitation that goes against social norms and the principle of trust and good faith, and in determining this, comprehensive consideration of the contents and amount of property given or granted in relation to the solicitation, form, and integrity of the business administrator, who is the legal interest protected by the law, should be comprehensively considered, and such solicitation is not necessarily required to be explicitly and implicitly made (see Supreme Court Decision 2009Do5239, Sept. 24, 2009). Meanwhile, the crime of taking property in breach of trust is established when a person who administers another's business acquires property or pecuniary benefits in exchange for an illegal solicitation in relation to his/her duties, and therefore, whether the person actually acted in violation of his/her duties does not affect the establishment of the

(B) Facts of recognition

According to the evidence duly admitted and examined by the court below, the following facts can be acknowledged:

1) From Apr. 20, 2007, Defendant 2 operated Nonindicted Co. 3, which had been implementing the construction of a new building for the main complex of “○○○○○” in Ansan-si (hereinafter omitted), and Defendant 5 was the director of the asset management team of Nonindicted Co. 2, Ltd. who was awarded a contract from Nonindicted Co. 3 for the construction of the said main complex building from February 2007, and served as a person in charge of the business progress of the said main complex building from February 2007.

2) Although the main complex building was completed in March 2007, the 32 households and 16 units of apartment buildings (a total of 21.5 billion won) were unsold in lots. As a result, Nonindicted Co. 3 was liable to Nonindicted Co. 2 for the liability of KRW 20.4 billion, including the construction cost of KRW 1.9 billion and the indemnity liability of KRW 18.5 billion, to Nonindicted Co. 2.

3) In order to secure the above claim, Nonindicted Co. 2 continued to propose that the deceased Nonindicted Co. 11 had been the representative director from April 2007 to pay in kind the above unsold apartment, etc. to Nonindicted Co. 3 after the appraisal and assessment by the appraisal and assessment agency. However, Nonindicted Co. 3 requested a simplified appraisal of the unsold apartment, etc. in lots at the time when the real estate market was at the time and when the appraisal and assessment agency, which was traded, requested the appraisal and assessment agency, to conduct a simplified appraisal of the unsold apartment, etc. in lots, and the appraisal and assessment is anticipated to be less than 17 billion won or 18 billion won, and it is anticipated that the appraisal and assessment would be much less than 20.5 billion won that much less than 10% discounted from the initial sale price.

4) Around July 2008, Defendant 5 stated that, even if the appraisal and assessment was conducted on Defendant 2, it would not be used for bank loans, but for the settlement of claims, if the appraiser’s talk well, it would be able to receive an appraisal with an amount close to the sale price. After obtaining the approval from the upper court, Defendant 5 requested the Hyban appraisal corporation and △△ Appraisal Corporation, which traded by Nonindicted Co. 2, to conduct an appraisal of the said unsold apartment units, etc., and Defendant 5 called Defendant 2 by phone to the effect that, around that time, the appraisal and assessment was conducted on the said unsold apartment units.

5) At that time, Defendant 2 asked Nonindicted 12, the director of Nonindicted Co. 3, to find the above △ Corporation, etc. so that the appraisal can be made well, and ordered Defendant 5 to remit KRW 10 million to Defendant 5, and Nonindicted 12 asked Defendant 5 to call to Defendant 5 to “the account number is changed as Defendant 2 would transfer KRW 10 million,” and Defendant 5’s account number was identified, and on August 28, 2008, Defendant 4, the person in charge of accounting of Nonindicted Co. 3, who transferred KRW 10 million to the above account.”

6) Meanwhile, Nonindicted Co. 10, etc., which was operated by Defendant 2, including Nonindicted Co. 3, at the time, was unable to pay employees’ benefits properly.

7) After that, each of the above appraisal agencies which received an appraisal request from Nonindicted Co. 2, on September 2, 2008, submitted to Nonindicted Co. 2 the appraisal report that assessed the appraisal value of the above unsold apartment units as approximately KRW 20 billion.

(C) Determination

The following circumstances revealed through the aforementioned legal principles and factual relations, i.e., ① Defendant 2 agreed to settle the debt relationship through the appraisal and assessment of the above apartment unit unsold in lots, etc., according to Defendant 5’s opinion. However, when the appraised value is low, Defendant 2 was endeavoring to raise the appraised value so that it can be raised. ② Defendant 5 was in a position to exercise considerable influence on the settlement of debt relationship with Nonindicted Co. 2 Co. 3 and its execution, as a person in charge of the foregoing main complex building, and the appraisal and assessment in the process. ③ Defendant 2 transferred KRW 10 million to Defendant 5, it was time for Defendant 5 to request the appraisal and assessment of the above apartment unit unsold in lots, etc.; ④ Defendant 5 was in a position of having been subject to a new deposit account in his name, not in his own deposit account; ⑤ Defendant 200,000 won was transferred to Defendant 1’s trust account without any influence on the said apartment unit’s new deposit account.

Therefore, the court below found the defendant 2 and the defendant 5 not guilty of this part of the facts charged on the ground that there was no illegal solicitation between the defendant 2 and the defendant 5. It erred by misapprehending the legal principles on illegal solicitation in the crime of giving rise to breach of trust,

3. Conclusion

A. Judgment of the court below

Therefore, of the judgment below, the part of the guilty portion against Defendant 1 and the part of the verdict on the charge of giving property in breach of trust due to the transfer of each right to sell in lots against Defendant 3 and 4, the part on the receipt of bribe against Defendant 2 and the part on the receipt of property in breach of trust due to the transfer of each right to sell in lots against Defendant 3 and 4, and the part on the receipt of property in breach of trust against Defendant 5, and the part on the receipt of property in violation of trust due to the acquisition of the right to sell in lots against Defendant 3 and 4 pursuant to Article 364(2) of the Criminal Procedure Act shall be reversed ex officio pursuant to Article 364(2) of the Criminal Procedure Act, and the part on Defendant 5 among the part on the judgment of the court below against Defendant 1 and 2 shall be reversed pursuant to Article 364(6) of the Criminal Procedure Act. Thus, the judgment of the court below on the grounds of appeal on unfair

B. The scope of the judgment of the court below as to Defendant 1’s violation of special law (Fraud) and fraud after the reversal of the judgment below

In the trial prior to the remanding of the case, the prosecutor applied for the amendment of the indictment in which part of the charge is changed in exchange for the violation of the special law (Fraud) and the part of the fraud, and withdrawn the charge on the ground that the defendant acquired 30 million won from Non-Indicted 5 by double sale fraud [Article 1 (19) of the indictment prior to the alteration] and the charge that the defendant acquired 220 million won from Non-Indicted 6 by double sale fraud [Article 1 (42) of the indictment prior to the alteration of the indictment] from Non-Indicted 6 [Article 1 (Defendant 1) of the indictment prior to the alteration of the indictment].

However, the withdrawal of the indictment by the method of the modification of the indictment can be limited to some of the facts charged within the extent that the identity of the indictment is recognized, and where several of the facts charged in the indictment competes with each other due to lack of identity, it is not the method of the modification of the indictment in order to withdraw part of the indictment (see Supreme Court Decision 91Do1438 delivered on April 24, 1992) but the procedure for partial cancellation of the indictment is not the way of the indictment (see Supreme Court Decision 91Do1438 delivered on April 24, 1992). As long as the facts charged which the prosecutor intends to withdraw in the indictment are identical to those stated in the indictment, it is not the way of the modification of the indictment, but the procedure for partial cancellation of the indictment should not be followed. According to Article 255 (1) of the Criminal Procedure Act, it is impossible to cancel the indictment in the trial prior to the remand of the court of appeal only before the issuance of the judgment of the first instance, it is not possible that the defendant acquired 200 million won from double fraud and 2 million won.

1. Violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud), fraud, fabrication of private documents, and the use of a falsified document by Defendant 1;

A. Violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud) and fraud

Defendant 1 was employed as a usual member of Nonindicted Co. 10 established for the purpose of construction business, etc. around 200 and served as the head of the re-general in charge of the management and operation of the funds of the said company from around 2004, and was employed as the head of the association of the Ansan-si (hereinafter omitted) from November 2003 to September 2008. The deceased Nonindicted Co. 11 was a person who actually operated the said company after establishing the Nonindicted Co. 10 Company.

피고인 1은 2003. 6. 3.경 망 공소외 11과 공모하여, 안양시 (이하 생략)에 있는 공소외 1 주택조합 사무실에서, 조합에서 시행하여 신축·분양 중이던 안양시 (이하 생략) 405 ■■ 아파트 중에서 정상분양이 완료된 후 조합이 임의대로 분양할 수 있는 아파트를 분양받을 권리(세칭 ‘딱지’)를 팔아 공소외 10 주식회사의 운영자금 등으로 사용하기 위하여, 사실은 피해자로부터 지급받게 될 금원을 분양대금이 아니라 위와 같이 공소외 10 주식회사 및 그 계열사의 사업자금 및 운영경비로 사용할 생각이었고, 또한 위 ■■아파트 486세대 중에서 282명의 조합원들에게 분양될 세대들을 제외한 나머지 204세대에 대하여는 향후 일반분양 공고를 내어 분양할 계획이었기 때문에, 만약 조합 탈퇴자나 분양 포기자가 생기지 않는 한 피해자에게 분양하여 줄 수 있는 잔여세대를 구할 수 없는 상황이었으며, 더욱이 공소외 10 주식회사는 회사운영자금 및 사업자금이 부족한 상황이었기 때문에 위와 같은 사유로 최종 분양을 받지 못하게 될 피해자에게 그가 이미 납입한 분양대금을 환급하여 줄 자금여력조차 없는 상황이었음에도 불구하고, 부동산중개업자 공소외 13을 통하여 피해자 공소외 14에게 “임의분양신청금을 납입하면 공소외 1 주택조합에서 시행 중인 ■■ 아파트 조합원분 32평형을 일반조합원 분양가에 분양받을 수 있게 해 주겠다.”라고 거짓말을 하여, 이에 속은 피해자로부터 중개업자 공소외 13을 통하여 2003. 6. 3.경 분양신청금 명목으로 3,900만 원을 지급받고, 2005. 3. 8.경 조합 명의의 ▲▲은행 예금계좌로 1억 7,500만 원을 송금받는 등 합계 2억 1,400만 원을 교부받아 이를 편취한 것을 비롯하여, 그 무렵부터 2007. 4. 20.경까지는 망 공소외 11과 공모하여, 2007. 4. 20.경부터 2008년 9월경까지는 단독으로, 위와 같이 이미 정상적인 분양계약자가 있는 세대에 대하여 이중분양을 하는 방법으로 별지 범죄일람표 1, 2 기재와 같이 총 143명의 피해자들로부터 합계 342억 2,631만 원(= 303억 395만 원 ＋ 39억 2,236만 원)을 교부 또는 송금받아 이를 편취하고,

B. Forgery of private documents and the uttering of private investigation documents

피고인 1은 2007년 2월경부터 2007년 5월경까지 사이 일자불상경 안양시 (이하 생략)에 있는 공소외 10 주식회사의 사무실 겸 공소외 1 주택조합의 사무실에서, 공소외 15가 그가 분양을 받기로 한 ■■아파트 107동 701호에 관한 공급계약서의 작성을 요구하자, 사실은 위 107동 701호에 대해 이미 공소외 16과 정상적인 분양계약이 체결되어 있는 상태임에도, 공소외 15에게 허위의 공급계약서를 발급해 주기 위하여 행사할 목적으로 정당한 권한 없이, 공소외 15와의 분양계약을 중개한 ■■부동산 중개업자 공소외 17에게 위 사무실에 비치되어 있던 ■■아파트 ‘공급계약서’ 용지를 건네주어 ‘매수인(을)란’에 공소외 15의 주민등록번호, 주소, 연락처 등 인적사항을 기재하여 오게 한 다음, 검정색 볼펜으로 위 ‘공급계약서’의 재산의 표시란에 ‘107동 701호’, 전용면적란에 ‘126.47㎡’, 주거공용면적란에 ‘24.684㎡’, 공급면적란에 ‘151.154㎡’, 총공급금액란에 ‘689,000,000원’이라고 각각 기재하고, 위 계약서 말미에 부동문자로 인쇄되어 있는 ‘시공자 겸 채권양수인(병)’란의 ‘ 공소외 2 주식회사 대표이사 공소외 18’의 이름 옆에 2007년 2월경에 망 공소외 11 대표이사로부터 교부받아 소지하고 있던 공소외 2 주식회사 대표이사의 직인을 임의로 날인하는 방법으로 권리의무에 관한 사문서인 공소외 2 주식회사 대표이사 명의의 ‘ ■■ 아파트 공급계약서’ 1부를 위조하고, 그 무렵 위와 같이 위조한 공급계약서를 마치 진정하게 성립한 것처럼 중개업자 공소외 17을 통하여 공소외 15에게 교부하여 줌으로써 이를 행사한 것을 비롯하여, 2006년 12월경부터 2008년 6월경까지 사이에 별지 범죄일람표 1, 2 기재와 같이 총 34회에 걸쳐 위와 같은 방법으로 공소외 2 주식회사 대표이사 명의의 ‘ ■■ 아파트 공급계약서’를 각각 위조하고, 그 무렵 위와 같이 위조한 각 공급계약서를 각 수분양자들에게 교부하여 줌으로써 이를 각각 행사하였다.

2. The offering of a bribe by Defendant 1 and 2

A. Defendant 1 and 2 conspired,

피고인 2는 2007년 9월 초순경 안양시 (이하 생략) 공소외 1 주택조합아파트 시행사업에 관하여 인·허가, 관리·감독 등 업무를 담당하던 △△시청 건축과 소속 지방시설 6급 공무원인 공소외 7로부터 ‘급히 5,000만 원을 빌려 달라’는 부탁을 받고 5,000만 원을 마련한 후 피고인 1에게 지시하여 이를 공소외 7에게 빌려주도록 하고, 피고인 1은 피고인 2의 지시에 따라 ▲▲은행 포일동지점 발행의 수표번호 생략, 액면금 5,000만 원, 발행일자 2007. 9. 7.로 된 자기앞수표 1장을 준비한 다음, 2007. 9. 10. △△시 XX구에 있는 △△시청 5층 건축과 주택관리팀 사무실 앞 복도에서 공소외 7에게 위 자기앞수표를 교부하여 같은 액수만큼의 금원을 대여한 후 2008. 9. 22. 변제받을 때까지 이자를 지급받지 아니함으로써 공소외 7로 하여금 위 5,000만 원에 대한 이자 2,589,041원 상당의 재산상 이익을 얻게 하여 공무원의 직무에 관하여 뇌물을 공여하였다.

B. Defendant 1:

(1) around October 4, 2006, at the above △△△ Building and Housing Management Team office around October 4, 2006, work as public officials of local facilities and construction from around May 199 to the △△△△△△△ (former Grade VII) and from around May 2003, Nonindicted 8, who had been in charge of various affairs related to authorization and permission, and management and supervision, etc. of various affairs related to the above fugitive Dong Housing Association's implementation project, who had been in charge of various affairs related to permission and permission, etc., to the maximum extent possible, handle various affairs related to authorization and permission, etc. about the construction site of the said association apartment construction site, and even if all kinds of civil petitions are filed, they shall provide a gift certificate of KRW 900,000,000,000, 100 won each with three gift certificates, and shall give a bribe to the public official's duties.

(2) Around February 16, 2007, at the office of the above Housing Management Team around New Year’s Year’s Year’s Year’s Day, Nonindicted 8 provided 100,000 won cards and three bags containing three different gift certificates, and offered a bribe in relation to the public official’s duties.

3. The possession of property in breach of trust due to the acquisition of the right to sell the property by the defendant 3 and 4

Defendant 3 and 4 are employees of Nonindicted Co. 2 in charge of the construction of the apartment of the housing association of Ansan-si (hereinafter omitted), who are the managers of the above apartment project, and according to Article 8 of the construction contract between Nonindicted Co. 1 and the housing association of the contractor and the Nonindicted Co. 2, the contractor, the contractor, the management of sales revenue and support for the receipt management of the buyers of the housing association of the non-indicted 2, as the scope of business of the non-indicted Co. 2, the non-indicted Co. 2, who is the non-indicted Co., Ltd., is obliged to secure the claim for construction payment by managing the passbook with sales revenue deposited, and to return the money deposited in the future of the non-indicted Co. 2, but if the money deposited in the future of the non-indicted Co. 2, the non-indicted Co. 1, including the money deposited in the future of the non-indicted Co. 2, the non-indicted Co. 2, should confirm whether the double

Therefore, Defendant 3 and 4 take charge of the sales revenue of Nonindicted 10 apartment associations, which were executed by Nonindicted 2’s employees of Nonindicted 10 and entered into the said apartment association. Thus, in the event that the association is double-sale, despite the duty to take appropriate measures, such as securing the claim for construction cost of Nonindicted 2 and reporting it to the company so as not to undermine the external new delivery, Defendant 10 million won through confirmation as to whether the association is double parcelling-out, Defendant 1 and 4 want to take measures against Nonindicted 2’s head office in Jongno-gu Seoul Metropolitan Government transportation Dong (hereinafter omitted) around October 207, Defendant 1 and Defendant 2’s head office on the 7th floor of the said apartment association’s 10th floor to the effect that the above 10th apartment association acquired the above 10th apartment house from the above 10th apartment association, and Defendant 1 and Defendant 3 want to request the above 10th apartment association to take charge of the settlement of project cost and service expenses of Nonindicted 10 corporation.

4. The acquisition of property in breach of trust by the defendant 1 and 2 for each transfer of the right to sell the property

Defendant 1 and 2 conspired with Defendant 1 and Defendant 2 at the meeting room of the head office of Nonindicted Co. 2, Ltd., the 7th floor around October 2007, and Defendant 3, Defendant 4 and Defendant 4 were asked to request each apartment house from Defendant 3 and 4, and Defendant 2 notified Defendant 2 of the above fact by telephone, and Defendant 1 instructed Defendant 1 to “as the necessary persons for Nonindicted Co., Ltd. request first to do so,” and accordingly, Defendant 1 prepared and delivered the apartment sales contract to Defendant 3 and 4 as described in the above paragraph 3, and exempted Defendant 3 from down payment 7,1610,00 won, and Defendant 4 provided Defendant 1 with the status of acquiring the above bonds from the members of the association as a buyer of the apartment, thereby making an illegal solicitation with respect to Defendant 3 and 4’s property profits.

5. The defendant 5's taking of property in breach of trust

Defendant 5 was the director of the asset management team of Nonindicted Co. 2, who was awarded a contract for the construction of a new construction of a primary apartment, and was working as a person in charge of the business progress of the said primary apartment from February 2007. Defendant 5 had duties to manage the affairs in order to prevent unfair damage to Nonindicted Co. 2 in the process of construction cost settlement with Nonindicted Co. 3 by comprehensively supervising and giving appropriate instructions on the business progress of the said primary apartment complex.

around May 31, 2004, Nonindicted Co. 3, an affiliate company of Nonindicted Co. 10, concluded a construction contract with Nonindicted Co. 2, a contractor, for the purpose of promoting the new construction project of an apartment 260 households and 20 commercial buildings, with the total construction cost of KRW 51.32 billion between Nonindicted Co. 2, a contractor, and Nonindicted Co. 2, a company, completed the construction project on March 2007, but the overall real estate competition had been unsold in lots with 32 households and 16 commercial buildings on August 207 and September 2007, and it was reported that Nonindicted Co. 3, a total sales price of KRW 21.5 billion was 21.5 billion.

한편, 공소외 2 주식회사는 공소외 3 주식회사 측으로부터 약 19억 원 상당의 공사대금을 지급받지 못하고 있었고, 공소외 3 주식회사가 ▲▲은행 수원지점으로부터 대출을 받을 때 공소외 2 주식회사가 보증을 선 금액이 약 185억 원 상당에 달하여, 공소외 3 주식회사 측을 상대로 계속하여 지급독촉을 하고 있던 중, 2007년 4월경 공소외 2 주식회사와 공소외 3 주식회사가 채무변제방안을 논의한 결과, 공소외 2 주식회사에서 ‘ ○○○’ 주상복합아파트의 미분양 아파트와 상가들을 감정평가금액에 따라 인수하여 가는 대신 그 감정평가금액에 해당하는 만큼 공소외 3 주식회사의 채무를 면제하여 주기로 약속하였으나, 그 당시 전반적인 부동산시황이 좋지 않았고 ‘ ○○○’ 주상복합아파트 주변 상가의 상권이 죽어 있는 등 당초의 분양가격보다 낮은 금액으로 감정평가액이 나올 것으로 예상되는 상황이었기 때문에 공소외 3 주식회사 측에서는 계속하여 감정평가를 받기를 꺼리고 있었고, ‘ ○○○’ 주상복합아파트 사업지의 실무담당자인 피고인 5로서는 속히 공소외 3 주식회사를 설득하여 감정평가를 받도록 함으로써 그 감정결과를 토대로 미지급된 공사대금 등에 대한 정산을 하여야 하는 상황이었다.

At around July 2008, Defendant 5 asked Defendant 2 to submit an appraisal report to be used for the settlement of accounts between Nonindicted Co. 10 and Nonindicted Co. 2, not to submit it to a bank or a tax office, but to the appraiser traded with Nonindicted Co. 2, Defendant 5, who received the order from Defendant 2 on August 28, 2008, that it would be able to conduct an appraisal at an amount equal to KRW 20 billion if the appraisal report to be used for the settlement of accounts between Nonindicted Co. 10 and Nonindicted Co. 2 would be able to conduct an appraisal in an amount equal to or more than KRW 20 billion if the appraisal report to be used for the settlement of accounts is made," and acquired the property in return for unjust solicitation in relation to his duties.

6. The defendant 2's giving property in breach of trust to the defendant 5

Defendant 2: (a) around August 28, 2008, under the same name as indicated in paragraph (5) above, had the vice head of Nonindicted 4 transfer KRW 10 million to the deposit account in the name of Defendant 5’s wife Nonindicted 9; and (b) provided property in response to Defendant 5’s unlawful solicitation regarding Defendant 5’s duties.

【Violation of the Special Act on the Punishment of Specific Economic Crimes (Fraud), Fraud, Forgery of Private Document, and the Use of Private Document at the Time of Sales】

1. Part of the statement by Defendant 1 at the original trial court

1. Each legal statement of the witness of the court below, Nonindicted 21, 22, and 4

1. Some statements made by the prosecutor concerning Defendant 1 in the interrogation protocol of the prosecution;

1. Statement made by each prosecutor on Nonindicted 23 and 21

1. Statement made by each police officer on Nonindicted 24, 25, and 26

1. Statement made by the police on Nonindicted 27 (including apartment supply contract, confirmation document, and deposit without passbook);

1. Statement of each written statement (including a copy of each attached contract for sale in lots, written confirmation, and deposit certificate, etc.) for the victims listed in 1 and 2 crime sight table;

1. Cooperatives, passbooks, details of transactions, and each investigation report (to be accompanied by a copy of the sale contract) under Defendant 1; and

【Bribery of Bribery as stated in Paragraph 2 at the Time of Sales】

1. The defendant 1 and 2's partial statements in the original judgment

1. The statement in the original trial by Nonindicted 8 at the court below

1. Some statements made against Defendant 1 in the interrogation protocol of the prosecution (2009Gohap113) No. 1 and 3 times as to Defendant 1

1. On the first and second statements made by Defendant 2 concerning the suspect interrogation protocol of the prosecution (2009Gohap113, the case), some of the statements made by the prosecutor

1. Statement Nos. 4 and 5 of Nonindicted 8 on the suspect interrogation protocol of the prosecution (including Defendant 1’s partial statement in the fourth protocol)

1. Some statements in the police interrogation protocol regarding Nonindicted 7

1. Statement made by the police on Nonindicted 28 and 29

1. Copies of each check (Evidence No. 6, 557, 560), and copies of each passbook (Evidence No. 6, 373, 494, 498 pages);

[The point of obtaining property in breach of trust and giving property in breach of trust as stated in paragraphs 3 and 4 at the time of sale]

1. The defendant 3 and 4's partial statement at the court of the trial after remanding the case;

1. The defendant 1 and 2's partial statement at the court before remanding the case

1. The defendant 3, 4, 1, and 2's partial statement in the original trial

1. Some statements made by each prosecutor of the suspect examination protocol concerning the defendant 3, 4, 1, and 2 (Evidence Records 8: 1507 pages 1507 pages 1564 pages, 1564 pages, 1931 pages, 2028 pages, 2053 pages, 2053 pages);

1. Statement on Nonindicted 30’s statement (Evidence No. 7, 1068 pages)

1. A supply contract (Evidence 6No. 154 pages), a construction contract (Evidence 6No. 215 pages);

1. Protocol of seizure (six books of evidence, 107 pages);

【The receipt of property in breach of trust and the receipt of property in breach of trust as stated in paragraphs 5 and 6 at the time of the sale】

1. The defendant 5's partial statement at the court of original instance after remanding

1. The defendant 5 and 2's partial statement at the court of the original instance

1. Partial statement of each protocol of interrogation of the suspect against the defendant 5 and 2 by the prosecutor (the evidence record 8: 1635 pages, 2053 pages);

1. Statement made by the prosecution against Nonindicted 12 on the prosecutor’s statement (the evidence record 8: 2086 pages)

1. A written appraisal (Evidence of eight books of evidence, 2102 pages);

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

A. Defendant 1

Article 3(1)2 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes, Article 347(1)(50 million won or more of each fraud), Article 347(1)(50 million won or more of each Criminal Act, Article 231 of each Criminal Act, Article 231 of each Criminal Act, Articles 234 and 231 of each Criminal Act, Articles 133(1), 129(1), and 30 of the Criminal Act, Articles 133(1) and 129(1)(the each of the two Articles, 357(2), and (1)(the each of the two Articles, 357(1), and (30), and 34 of the Criminal Act, Articles 133(1)2 of the Criminal Act, Articles 129(1)(the each of the two Articles, 357(2), and (4) of the Criminal Act, Articles 357(1), and 30 of the Criminal Act, each of the two Articles.

B. Defendant 2

Articles 133(1), 129(1), and 30(1) of the Criminal Act; Articles 357(2) and (1), 30(2) of the Criminal Act; Articles 357(2) and (4) of the Criminal Act; Articles 357(2) and (1) of the Criminal Act (Article 357(2) of the Criminal Act (Article 357(1) of the Criminal Act); Articles 357(2) and (1) of the Criminal Act (Article 357(5) of the Criminal Act

C. Defendant 3, 4, 5

Article 357 (1) of the Criminal Code (Selection of Imprisonment with Labor)

1. Aggravation of concurrent crimes (Defendant 1, 2);

Article 37 (former part of Article 37, Article 38 (1) 2, and Article 50 of the Criminal Act [for Defendant 1, each punishment shall be imposed on the victim non-indicted 31 who is the largest criminal situation, and the punishment imposed on the defendant 2 shall be aggravated by the punishment imposed on the crime of offering of a bribe to non-indicted 7 who is the largest punishment for the crime of offering of a bribe];

1. Inclusion of days of pre-trial detention (Defendant 1, 2);

Article 57 (1) of the Criminal Code (The Constitutional Court Order 2007HunBa25 Decided June 26, 2009) Article 57 (1) of the Criminal Code (the whole number of days of detention pending the pronouncement of the judgment is included in the calculation of whole number of days of detention pending the pronouncement

1. Suspension of execution (defendants 2, 3, 4, 5);

Article 62 (1) of the Criminal Code

1. Collection (defendant 3, 4, 5);

The latter part of Article 357 (3) of the Criminal Code [Provided, That the defendant 4 obtained the status of the purchaser of the non-indicted 1 apartment association as the non-indicted 1 apartment association's 32 square meters due to the crime of breach of trust because it is merely a part of the number of buyers, so it can be deemed that the market price of the above apartment of the association at the time of the decision of this case and the sale price of the association members can not be accurately calculated the difference between the market price of the above apartment of the association at the time of the decision of this case. Thus, since the market price of the above apartment cannot be found at the time of the decision of this case, the difference between the market price of the above apartment of the association and the sale price of the association members cannot be calculated upon the request of the defendant 1 to transfer the right to purchase the above apartment, so it is clear that the difference between the market price of the above apartment of the association and the members of the association would be 20 million won or more, and it can not be confiscated to the association.

1. Judgment on Defendant 1’s assertion

Although the Defendant asserts that the money acquired by Nonindicted 32 is not KRW 175 million, but merely KRW 140 million, it is not a KRW 100 million. However, according to the evidence duly adopted and investigated by the lower court (Evidence 32’s written statement (Evidence 1119 pages), it can be recognized that Nonindicted 32 paid KRW 175 million to the instant association by June 23, 2005 as the sale price for Nonindicted 1 Housing Association until June 23, 2005, it can be recognized that the Defendant obtained KRW 175 million from the victim Nonindicted 32 by using the double sale fraud for Nonindicted 1 Housing Association apartment. Accordingly, the Defendant’s aforementioned assertion is without merit.

2. Judgment on the assertion by Defendant 2, 3, and 4

A. The assertion

Defendant 3 and 4 did not confirm whether the instant association was double parcelling-out of the non-indicted 1 apartment association, thereby preventing the non-indicted 2 corporation from taking appropriate measures accordingly, does not constitute an act in violation of their duties as an employee of the non-indicted 2 corporation. The above Defendants did not acquire the right of parcelling-out regarding the non-indicted 1 apartment association in exchange for illegal solicitation of duties from Defendants 1 and 2, and even if they acquired the right of parcelling-out regarding the said apartment, they do not constitute an acquisition of property profits. Defendant 2 did not participate in the transfer of the right of parcelling-out regarding the above apartment against the defendant 3 and 4, and thus, Defendant 2 did not constitute a crime of taking-out of trust due to the acquisition of the right of parcelling-out against the defendant 3 and 4, and the crime of giving-out of trust as well as the crime of giving-out

B. Determination

(1) Whether Defendant 3 and 4 violated their duties on the confirmation of double-sale

Article 357(1) of the Criminal Act is established when a person who administers another's business obtains property or financial benefits in exchange for an illegal solicitation in connection with his/her duties. The "person who administers another's business" as the subject of the crime of taking property in breach of trust refers to a person who is acknowledged to have a fiduciary relationship to handle the business in light of the principle of trust and good faith in internal relations with the other person, and does not necessarily require that a person has a right to the business in an external relationship with the third person, and it does not require that the business is a comprehensive entrusted business. In addition, in the crime of taking property in breach of trust under Article 357(1) of the Criminal Act, the grounds for taking property in breach of trust can also arise through the provisions of Acts and subordinate statutes, legal act, custom, or business management. In addition, in the crime of taking property in breach of trust under Article 357(1) of the Criminal Act, the "duty" refers to a person who administers another's business, but includes not only the original business arising from the entrustment relationship but also affairs closely related thereto (see Supreme Court Decision 2007Do30

In this case, the court below duly adopted and examined evidence, i.e., ① concluded a contract for construction work on December 13, 2005 between the association of this case and the non-indicted 2 corporation which is the contractor, and Article 1 (General Provisions) of the contract for construction work provides that the association of this case and the non-indicted 2 corporation shall execute a contract through mutual cooperation to complete the new apartment construction project on the land of the non-indicted 1 association. According to Article 8 (Scope of Business) the tax accounting of the seller's receipt, the seller's management of the proceeds for sale (including the passbook management) and the purchaser's receipt and management of the proceeds for the business of the non-indicted 2 corporation, respectively. According to Article 11 (Subject-Matter of Construction Work) of the Act, if the association of this case and the non-indicted 2 corporation are established for the smooth sale of the subject-matter of the new construction work for the smooth sale of the object of the construction work after consultation with the association of this case and the purchaser's deposit price for the new construction work.

(2) Whether Defendant 3 and 4 acquired a sale right in exchange for an illegal solicitation as to their duties

(A) Facts of recognition

According to the evidence duly admitted and examined by the court below, the following facts can be acknowledged:

1) Defendant 1 received a call from Defendant 4 who had worked for Nonindicted Company 2’s Housing Project 1 Team and visited Nonindicted Company 2’s head office in October 2007 and met Defendant 4. At that time, Defendant 4 told Defendant 1 to withdraw the above civil petition language, and Defendant 3 was present at that place.

2) At that time, Defendant 3 demanded that Defendant 1 prepare a contract for supply of the non-indicted 1 apartment, among the non-indicted 1 apartments sold by the instant association against Defendant 1, the general sale price of which was KRW 716 million, and Defendant 3 demanded Defendant 1 to prepare a contract for supply of the non-indicted 32 apartments.

3) Defendant 1 (B) reported to Defendant 2 by telephone on the demand of Defendant 3 to sell the meeting room and Defendant 2, and Defendant 2 instructed Defendant 1 to the effect that Defendant 1 “is given a public order by taking advantage of the matters demanded by a single company.” On the following day, Defendant 1 reported Defendant 2 on Defendant 4’s demand for sale.

4) On October 2007, Defendant 3 received the sales contract with Nonindicted 1 Housing Association 1, apartment 106, 302, which was the general sale portion, from October 1007, in its own wife Nonindicted 33, which was prepared retrospectively on October 10, 2006. The apartment paid KRW 7,1610,00 on October 10, 2006, which was an apartment for cancellation of the sales contract and return of the down payment for reasons of immigration, and Defendant 3 agreed to receive the sales contract and receive the first down payment and exempt KRW 7,161,000,000 from the first down payment and the intermediate payment and remainder payment to be paid at the time of occupancy.

5) On the other hand, Defendant 4 issued a sales contract prepared with the content that the sales price shall be paid at the time of occupancy to the members of the non-indicted 1 housing association and the sales price shall be KRW 324 million among the non-indicted 1 housing association's apartment units.

6) Defendant 1 said that the transfer of the above apartment sales right to Defendant 4 would result in a profit worth of KRW 100 million, and said that Defendant 1 would sell the sales right and would receive KRW 100 million. Defendant 4 also demanded the difference with the general allotment portion after 1 year. After that, Defendant 4 requested the transfer of the sales right to Defendant 1 by deeming that the occupancy of the above apartment is not a separate benefit by a tax reform with the content that the transfer income tax is exempted only when the requirements for a certain real residence are met. Defendant 1 provided KRW 20 million as part of the price that transferred the above sales right to Defendant 4 in September 2008.

(B) Determination

As seen above, in the crime of giving and receiving property in breach of trust, the term "illegal solicitation" refers to the solicitation goes against the social norms and the principle of trust and good faith. In determining this, a comprehensive consideration of the contents of the solicitation and the amount of the property given or granted in relation thereto, forms, and integrity of the business administrator, who is the legal interest protected by the law, should be given, and even if the solicitation is not explicitly and explicitly required, it shall be avoided, and the crime of taking and taking property in breach of trust is established when the person who administers another's business acquires property or pecuniary benefits in return for an illegal solicitation in relation to his/her duties. Thus, whether the person actually

Under the premise of the legal doctrine regarding the crime of double-sale in the crime of giving rise to breach of trust, the following circumstances that can be acknowledged by the evidence duly adopted and investigated by the court below, i.e., “Defendant 1 was unable to comply with the demand of Defendant 3 and 4 because it was necessary to provide services due to the problems on the website of this case.” Defendant 3 and Defendant 4’s double-sale problem at the time of demanding the right to sell lots was serious, and Defendant 1, who is an employee of the non-indicted 2 corporation, did not acquire double sale of the association at the demand of the non-indicted 3 and 4, because it was difficult for the association to take measures to acquire double sale of the association of this case or to obtain double sale of the association of this case, it appears that Defendant 3 and 4 could not refuse the demand of the association of this case by taking into account the above position of the non-indicted 1, association of this case as well as the fact that Defendant 3 and 4 did not have acquired double sale of the association of this case.

Therefore, it can be seen that Defendant 3 and 4 acquired the right to sell the apartment of Nonindicted Housing Association 1 in return for illegal solicitation in relation to their duties.

(3) Whether Defendant 3 and 4 acquired property benefits by acquiring a sale right

The term "property profit" refers to the increase in the value of one's whole property (see Supreme Court Decision 2005Do6439, Jul. 26, 2007). As seen above, Defendant 3 was exempted from paying the down payment equivalent to KRW 71.6 million, and it has already been formed at the time of the purchase in lots, so it has acquired the status of selling an apartment that is expected to be sold in lots. Defendant 4 also can be deemed to have acquired the status of selling an apartment with the members of the association and acquired the status of selling the apartment with the above apartment to the members of the association, and at least acquired the ownership in lots and the ownership in lots equivalent to the difference between the general price and the ownership in lots. Defendant 1 stated that the transfer of the above apartment ownership to Defendant 4 would result in a profit of KRW 100,000,000,000, and it can be deemed that Defendant 4 acquired the right to sell in lots and acquired it from Defendant 1 as part of the purchase in lots.

(4) Whether Defendant 2 participated in the transfer of ownership by Defendant 1

In the case of joint principal offenders who jointly process two or more persons and commit a crime, the conspiracy or conspiracy does not necessarily need to be made explicitly, but may be made objectively or implicitly. However, in any case, a combination of intent to jointly process a crime and realize it jointly is required. In a case where the defendant denies the criminal intent together with the conspiracy, the subjective element of the crime is to be proved by means of proving indirect facts or circumstantial facts that have considerable relevance with the criminal intent (see Supreme Court Decision 2007Do6772, Oct. 29, 2009).

As seen above, Defendant 3 demanded the right of sale to Defendant 1, and Defendant 1 sent a meeting room and Defendant 2 a report on Defendant 3’s demand for the right of sale by telephone, and Defendant 2 instructed Defendant 1 to the effect that “the company requires necessary persons from one company,” and Defendant 1 made a verbal report to Defendant 2 on Defendant 4’s demand for the right of sale, and Defendant 1 was in the position of the head of the association, but Defendant 1 was in the position of the head of the re-general of the non-indicted 10 corporation established the association, and Defendant 2 was under the direction and supervision of Defendant 2, the representative director of the non-indicted 10 corporation, in the apartment sale. In light of the fact that Defendant 2 was under the intention of co-processing the crime of selling the property through the transfer of the right of sale to Defendant 1, Defendant 3 and 4, by actively ordering the transfer of the right of sale to Defendant 3 and 4.

(5) Sub-decisions

Therefore, as to the acquisition of the right to sell the apartment of the Defendant 3 and 4, the crime of taking property in breach of trust is established. Defendant 1 and 2 jointly transferred the right to sell the apartment of the non-indicted 1 housing association to Defendant 3 and 4, the crime of taking property in breach of trust is established. Thus, all of the above arguments by Defendant 2, 3, and 4 are rejected.

1. Defendant 1

First of all, in the case of this case where the defendant and the prosecutor appealed and remanded ex officio the judgment of the party prior to remand while dismissing the appeal by the prosecutor after filing a final appeal, the court below cannot be sentenced to a more severe punishment than that of the judgment prior to remand (see Supreme Court Decisions 68Do1870, Mar. 31, 1969; 78Do2309, Dec. 13, 1978; 98Do2111, Sept. 25, 1998).

There are extenuating circumstances such as the fact that the Defendant, as an employee of Nonindicted Co. 10, became the president of the instant association in accordance with the direction of Nonindicted Co. 11 of the network, was leading to the crime of fraud by double sale, fabrication of private documents, and uttering of an investigation document, etc., most of the money acquired by the Defendant appears to have been used for the operation fund and repayment of debts of Nonindicted Co. 10 and its affiliated companies, and there is no history of criminal punishment.

However, the Defendant, as the president of the instant association, actively participated in the crime of double-sale, fabrication of private documents, and uttering of a falsified document, was in charge of taking an important role in the crime. The victims caused by double-sale reach 143 persons, and the amount of damage exceeds 34.2 billion won, and most victims are those who want to live in their housing, and it seems that property and mental damage caused by such fraud, etc. will be enormous, and the Defendant committed the instant crime of double-sale, etc. against the interests of the members by violating his duties as the president of the regional housing association.

Therefore, taking into account all the above circumstances, the Defendant’s age, character and conduct, etc., as well as the various conditions of sentencing indicated in the records of this case, the sentence of sentence identical to that of the judgment of the party before remanding the case shall be determined as per Disposition.

2. Defendant 2

First of all, the Defendant’s lending money up to KRW 50 million to a public official without interest to the public official thereby impairing the fairness in purchasing the public official’s performance of duties and performing his duties; the Defendant’s arbitrary grant of the right to sell apartment houses newly constructed and sold by the association to the employees of Nonindicted Co. 2 Co. 2, a contractor, to the employees of Nonindicted Co. 2, thereby impairing the integrity of transactions with Nonindicted Co. 2, and causing losses to the members; and Defendant 5, an employee of Nonindicted Co. 2, who is an employee of Nonindicted Co. 2, grants illegal solicitation regarding his duties and grants money worth KRW 10 million, thereby repeatedly committing the crime of misappropriation.

However, there are extenuating circumstances, such as the fact that the Defendant lent money at the request of a public official, and the representative director of a company which entered into a business service contract with a cooperative, caused the crime of giving property in breach of trust, which transfers the right to sell, as above, due to the active demand of the public official.

Therefore, the punishment is determined as per Disposition, taking into account all these circumstances, the age and character of the defendant, as well as the various conditions of sentencing indicated in the records of this case.

3. Defendant 3, 4

First of all, with respect to the judgment of the party before remanding, the Defendants and the public prosecutor dismissed the appeal by the public prosecutor after filing an appeal, and reversed and remanded the judgment of the party before remanding the case, the purport of Article 368 of the Criminal Procedure Act, which provides the principle of prohibition of disadvantageous change as seen above, is to stipulate the principle of prohibition of disadvantageous change, and the judgment after remand cannot be sentenced to more severe punishment than that of the judgment of the party before remanding the Defendants.

The Defendants actively demanded financial benefits in relation to the illegal solicitation regarding their duties, and there are extenuating circumstances such as that the amount of financial benefits acquired from the crime of taking property in breach of trust by acquiring the right to sell in lots reaches KRW 71.6 million for Defendant 3, and KRW 20 million for Defendant 4.

However, there are extenuating circumstances, such as that the Defendants did not have any profit from the property acquired by them, that the Defendants had faithfully worked as employees of Nonindicted Company 2, and that there was no history of any particular criminal punishment.

Therefore, the sentence shall be determined as per Disposition, taking into account all these circumstances, the Defendants’ age, character and conduct, as well as various kinds of sentencing conditions indicated in the records of the instant case.

4. Defendant 5

Although the Defendant reached KRW 10,000,000,000 received due to the instant crime of taking property in breach of trust, the Defendant has served as an employee of Nonindicted Company 2 in good faith during that period, and the Defendant’s act of taking property in breach of trust does not seem to have suffered loss to the company due to the Defendant’s act of taking property in breach of trust. As such, the Defendant’s punishment as the disposition is determined by taking into account all such circumstances, the Defendant’s age, character and conduct, etc.

1. The point of fraud by acquiring 30 million won from Defendant 1’s non-indicted 5

The summary of the facts charged of this case is that the defendant acquired 30 million won from the victim non-indicted 5 through double sale fraud about the non-indicted 1 apartment association on September 13, 2004. However, according to the evidence duly adopted and investigated by the court below, the court below acknowledged the fact that the non-indicted 34 of the non-indicted 5's wife deposited 30 million won in the deposit account of the association of this case in the name of non-indicted 5 on September 13, 2004. However, in light of the fact that the non-indicted 34 of the non-indicted 5's wife purchased the non-indicted 1 apartment association from the association of this case and remitted 30 million won to the association as the proceeds of selling the non-indicted 5's apartment, it cannot be deemed that the defendant proved that he acquired 30 million won from the non-indicted 5 by double sale and acquired 30 million won from the association.

Therefore, this part of the facts charged constitutes a case where there is no proof of facts constituting the crime, and thus, is not guilty under the latter part of Article 325 of the

2. The criminal defendant 1's fraud by defraudation of KRW 220 million against the non-indicted 6

The summary of the facts charged of this case is that the defendant, with respect to the victim non-indicted 6's non-indicted 1 housing association, obtained double selling fraud about the non-indicted 6's housing association and acquired a total of KRW 220 million over two occasions on May 31, 2005 and July 15, 2005. According to the evidence duly adopted and investigated by the court below, it can be recognized that the defendant deposited KRW 120 million in the deposit account of the association of this case in the name of non-indicted 6 on July 15, 2005. However, in light of the fact that the non-indicted 35's wife non-indicted 6 purchased the non-indicted 1 apartment house from the association of this case from the association of this case and remitted KRW 120 million to the association of this case, the defendant cannot be deemed to have proved that the non-indicted 6 obtained double selling fraud and acquired KRW 220 million from the association.

Therefore, this part of the facts charged constitutes a case where there is no proof of facts constituting the crime, and thus, is not guilty under the latter part of Article 325 of the

3. The point of fraud by defraudation of KRW 470 million against Defendant 1’s non-indicted 36

The summary of the facts charged of this case is that the defendant, on August 13, 2004, committed a double-sale fraud against the victim non-indicted 36 on the non-indicted 1's apartment association and acquired 470 million won from it. According to the evidence duly adopted and examined by the court below, it can be recognized that the non-indicted 36 remitted 47 million won to the deposit account of the association of this case on August 13, 2004, but there is no evidence to prove that the non-indicted 36 delivered the association of this case the amount exceeding the above 47 million won and up to 470 million won. Thus, this part of the facts charged constitutes a case where there is no proof of criminal facts, and thus, it should be pronounced not guilty pursuant to the latter part of Article 325 of the Criminal Procedure Act, but it shall not be sentenced to the non-indicted 36 and the defendant's non-indicted 47 million won through the fraud.

4. The point of fraud by defraudation of KRW 320 million against Defendant 1’s non-indicted 35

The summary of the facts charged in the instant case is that the Defendant acquired the victim non-indicted 35 a double-sale fraud regarding the non-indicted 1 housing association and acquired the victim's 320 million won in total over three times on June 16, 2004 and May 31, 2005 and July 15, 2005.

According to the evidence duly adopted and investigated by the court below, it can be acknowledged that Nonindicted 35 remitted 100 million won in its own name on May 31, 2005 to the savings account of the instant cooperative, and 120 million won in the name of Nonindicted 6, the wife on July 15, 2005, respectively. Nonindicted 35 appeared as a witness before the remand, and stated that the actual amount of damage is KRW 320 million. However, it is difficult to prove that Nonindicted 35 did not specifically state the timing and method of paying the sale price to the instant cooperative and Nonindicted 35 remitted 100 million won to the instant cooperative on June 16, 2004. In light of the above, it is difficult to deem that Nonindicted 35 proven that the amount paid to the instant cooperative exceeds KRW 220 million,00,000,000,000.

Therefore, since this part of the facts charged constitutes a case where there is no proof of criminal facts, it is necessary to pronounce innocence pursuant to the latter part of Article 325 of the Criminal Procedure Act. However, inasmuch as it is found that the defendant was guilty of fraud due to the deception of KRW 22 million against Nonindicted 35 million as stated in attached Table 2 (9) of the crime inundation, which is related to this crime, the sentence of innocence shall not be separately pronounced.

It is so decided as per Disposition for the above reasons.

[Attachment]

Judges Cho Jae-sung (Presiding Judge)