2016Gohap1260 Violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Misappropriation)

A

Yields (prosecutions) and half-dimensionals (public trials)

Law Firm Mail, Attorney Kang Jin-jin

Attorney Choi Chang-hee

Attorney Yang Tae-tae, Man-hee, Lee Ho-hee

July 14, 2017:

The defendant shall be innocent.

The summary of the judgment against the defendant shall be published.

1. Summary of the facts charged

The Defendant served as the president from October 1, 2010 to December 21, 2014, which is a public corporation under B-gu.

On February 8, 2013, the Defendant concluded an entrusted management and operation contract with the Seoul D Public Off-Road Parking Lot, which is owned by B, for three years from January 1, 2014, on consignment management and operation after being entrusted by B from B. Therefore, the Defendant was obligated to manage and operate the said parking lot for B with the care of a good manager, and there was a duty to collect the applicable parking fee (300 won per five minutes) specified in the entrusted management and operation contract.

The core contents of the Gu Ordinance related to the public off-road parking lot, which was amended and promulgated on April 5, 2013 and enforced on July 6, 2013, were changed from 10 to 200 minutes to '5 minutes' for each unit of the imposition of parking fees, and there was no provision that all class 1 and class 200 won per 5 minutes shall be applied to all class 1 and class 2 of the off-road parking lot in the Gu. Therefore, if the defendant reduced the above parking fees from 300 won per 5 minutes to 200 won per 5 minutes, he/she must obtain approval from the head of B by proving special circumstances that the situation of traffic congestion caused by vehicles of department stores has been clearly improved.

Nevertheless, on July 2013, the Defendant, with the revision of the municipal ordinance around July 2013, changed the unit time from 10 minutes to 5 minutes, violated his/her occupational duty, and thought that he/she received unfair pecuniary benefits from Co., Ltd. E.

At the end of November 2013, the Defendant, without obtaining approval from the head of B/L office at the end of the foregoing public corporation office, prepared the “B-Gu Council Data on the Operation Plan for D-Public Off-Road Parking Lots (No. 28, 2013)” and “The Operation Plan for the Off-Road Parking Lots (No. 2, 2013),” which applied parking fees to KRW 200 per five minutes without obtaining approval from the head of B/L, and deceiving the head of the competent office including B/L and the head of the traffic division, etc. after the entrusted operation.

Around December 31, 2013, the Defendant entered into an agreement with E and D public parking lots by applying parking fees of KRW 200 per five minutes according to the above management plan on December 2, 2013 with the approval of the head of the Gu.

From January 1, 2014 to September 15, 2014, the Defendant collected KRW 1,235,376,800 in total (the sum of KRW 1,075,126,200 in total and KRW 160,250 in customer charges paid by E companies on behalf of customers using department stores) by applying parking fees of KRW 200 per five minutes from E and other customers who use the said parking lot.

Accordingly, the Defendant, in violation of his/her duties, reduced and applied parking fees differently from the terms of the above consignment management operation contract without obtaining approval from the head of B/L, thereby obtaining property benefits equivalent to the amount of KRW 617,688,400 (the difference compared to KRW 1,853,065,20) that would have been collected if he/she had imposed parking fees by applying it properly to 617,68,400 won from January 1, 2014 to September 15, 2014, and caused property damage equivalent to the same amount in Section B.

2. Determination

Comprehensively taking account of the following facts and circumstances acknowledged by the evidence duly adopted and examined by the court, the evidence submitted by the prosecutor alone is difficult to acknowledge that the defendant committed an act in violation of his/her duties, or the defendant committed an intentional act in breach of trust. There is no other evidence to acknowledge it.

A. Facts recognized

1) The current status of the use of the D Public Off-Road Parking Lots Seoul (hereinafter referred to as the “D Public Off-Road Parking Lots”) is located adjacent to the E Building, and the above department store users are mainly using D Public Parking Lots.

2) Change in the method of management and operation of D public parking lots

A) Entrustment to the private sector

D Public parking lots have been originally owned by Seoul Metropolitan Government and have been managed and operated in a private consignment way to E. The Gu, after acquiring the ownership of D public parking lots on March 18, 2010, entered into an agreement with E Co., Ltd. and entered into an agreement with E to manage and operate D public parking lots in a private consignment manner for three years (from January 1, 2011 to December 31, 201), and the preferential time rate for such private consignment has not been interrupted.

B) Entrusted management by C

(1) Conclusion of an entrustment contract between B and C on February 8, 2013

In early 2013, the B-Council decided to entrust the management of D public parking lots to C1, and accordingly, B-Gu concluded a contract for the entrusted management and operation of D public off-road parking lots (hereinafter “the above entrustment contract”) between C and C on February 8, 2013, even though there remain a lot of periods for which the contract was made in the manner of entrustment to the private sector. This is the fact that C-C entrusts management of D public parking lots from January 1, 2014 to January 1, 2014, the main contents are as follows (Investigation Record 2).

Contract term (Article 4): 3 years;

○ Parking Fees (Article 7) shall be collected as the amount of parking fees for the Class 1 parking lot collected by the C Director for the parking lot:

(Standards for one vehicle section / won)

A person shall be appointed.

○ Operation Method (Article 8)

C The chairperson shall separately determine and operate a management plan (Regulations) for the parking lots subject to entrustment in order to enhance the efficiency of entrusted projects. In such cases, the management plan (Regulations) determined by the C Chairperson shall not deviate from the scope of relevant Acts and subordinate statutes, such as the Parking Lot Act and Ordinance, and shall include the following matters

3. Parking fees, methods and timing for collecting parking fees, imposition of surcharges, etc.;

(2) Establishment of C’s D Public Parking Lot Operation Plan on December 2, 2013

C On December 2, 2013, the D Public Parking Lot Operation Plan was established, and the parking fees related thereto are as follows:

○ Operating Hours and Applicable Fees (standard/wons for a passenger car partition)

A person shall be appointed.

(3) Conclusion of agreements on the operation and management of D public parking lots between C and E on December 31, 2013 and D public parking lots

C On December 31, 2013, C entered into an agreement on the operation and management of D public parking lots with respect to which C is operating a D public parking lot, and E is to pay by subrogation the parking fees for customers using department stores. The parking fees under the above agreement are the amount calculated by applying 1 hour and 2,400 won, 2 hours and 4,800 won, 3 hours and 7,200 won, and 200 won per 5 minute (the number of pages 105 pages).

(4) Operation and management of D D Public Parking Lots by C

C operated and managed D public parking lots from January 1, 2014, and by applying the parking fees of 200 won per five minutes, C paid the parking fees for the users of the department stores from E companies, or collected parking fees from other users. C is KRW 1,230,361,50 for the total amount of the proceeds of D public parking lots collected from January 1, 2014 to September 30, 2014 (the number of pages 274).

C)the private consignment;

B on May 28, 2014, the Gu established a proposal for the implementation that the actual operating profit of the D public parking lot is expected to be re-entrusted to the private sector. On August 5, 2014, the board of directors decided to re-entrusted the management and operation of D public parking lot to E by means of a private contract, and then entered into a contract for the entrusted management of D public parking lot with E on September 1, 2014 with E as KRW 2,653,33,000 annually, with the approval of the B-gu Office. Accordingly, the management and operation of D public parking lot was re-entrusted to the private sector as from October 1, 2014.

3) Raising suspicions by the BJ and requesting an investigation following the internal audit by the BJ.

On July 6, 2015, the head of B ordered an internal audit according to the issue of a member of the B-Gu Council. The B-gu internal audit of public officials of B-Gu Office, including F and G, who were C employees, requested the investigation of the Defendant on the ground that there was a suspicion of the Defendant’s breach of trust, who was C president, at the time of entrusted management of D-public parking lots.

(b) Circumstances to be considered;

1) In light of the following circumstances such as the developments leading up to the determination of parking fees for D public parking lots, the Section B on the management and operation of public parking lots, and the work process of C, it cannot be deemed as a violation of the duties for B immediately on the ground that C’s reduction of parking fees for D public parking lots from January 1, 2014 to KRW 200 per five minutes from the former “300 won per five minutes” to the “200 won per five minutes per five minutes.”

A) Considering the amendment of the Ordinance and its subsequent measures as follows, the amendment of the above entrusted management and operation agreement on the public parking lot located in B, C appears to have been regarded as imposing parking fees of KRW 200 per five minutes for the D public parking lot like other public parking lots.

(1) After the conclusion of the entrustment contract between B and C on February 8, 2013 regarding D public parking lots, the Seoul Special Metropolitan City Ordinance on the Installation and Management of Parking Lots (Ordinance No. 1126) was amended (amended on April 5, 2013, and enforced on July 6, 2013), B sent a letter to request B to take necessary measures to ensure the effectiveness of the above Ordinance on April 17, 2013.

(2) On June 28, 2013, in relation to the follow-up measures following the enforcement of the above Ordinance, C sent an official document stating that “A is expected to cause the reduction of revenue due to the change of the time for imposing parking fees (10 minutes per 5 minutes per 10 minutes unit) and the amount of the original unit, and thus, C is expected to cause the said entrustment contract for a public parking lot managed and operated by C to be changed en bloc (Evidence 2 of the submission of counsel).” On July 5, 2013, B sent an official document stating that “B will forward the consignment management contract for the public parking lot managed and operated by C after affixing affixed the official seal.” (No. 3 of the submission of counsel).

(3) As above, the parking fee for a public parking lot managed and operated by C is changed to 200 won per five minutes in a lump. C at the time, due to the management management period of E Co., Ltd. for D public parking lots (from December 31, 2013 to December 31, 2013), the above '200 won standard per five minutes' does not immediately apply to D public parking lots, but in managing and operating D public parking lots from January 1, 2014 to C from January 1, 2014, it seems that the '200 won per five minutes changed according to the enforcement of the above amended Ordinance was applied as it is. 4)

B) The following statements of the officers in charge of the management and operation of D public parking lots and related persons are consistent with the situation that “at the time, the practitioners thought that the parking fees of KRW 200 per 5 minutes are applied or applied to D public parking lots, and the work has been carried out.” It is consistent with the circumstance that C in relation to D public parking lots, the parking fees of KRW 200 per 5 minutes, as in other public parking lots, shall be imposed on D public parking lots.

(1) At the time, F, which is in charge of practice in C, has been operated as "600 won per 10 minutes", but it was known that according to the revision of the Ordinance around July 2013, it would be changed to "200 won per 5 minutes" in accordance with the amendment of the Ordinance, among prior consultations for parking lot underwriters. D public parking lot was recognized as being changed to "60 won per 10 minutes at the time when it was entrusted to E," the amount of "60 won per 10 minutes at the time when it was entrusted to E," and stated as "200 won per 5 minutes at the same time as other off-road parking lot." (No record of witness F).

(2) On December 10, 2013, G, which the F had been in charge of the affairs related to the acquisition of the parking lot after the withdrawal from C at C around December 10, 2013, stated, “A operates 52 public parking lots in C, not by contract, but by all on-road parking lots and all of the off-road parking lots. There is no time to separately set the charges for the first Class A parking lots in the Gu. It was determined that the first Grade A parking lot is subject to the application of the first Grade A parking fee, as a matter of course, because it has taken over the first Grade A parking lot in the Gu. Around September 2014, it was proposed that E would not receive the 300 won per five minutes’ parking fees from the general public, but it was refused by the amendment of ordinances from the low-income side.”

(3) An Inspector H, who was carrying out an internal audit at B office, was "300 won per five minutes when entering into a contract with B office around February 2013." Since the ordinance was amended, he was thought to have been received as "200 won per five minutes per five minutes" by the ordinance, regardless of who is in charge, and was not aware of a contract that "300 won per five minutes". At that time, he was paid 200 won per five minutes per five minutes. At that time, the person in charge of the investigation was determined to have all of them. The person in charge of the investigation was determined to have determined to have been that "30 won per five minutes per five minutes" only in the D public parking lot.

(4) At the time B-gu Transport Policy Director I stated that “The parking fee for the dry Parking Lot was not so detailed. However, it was known that the Municipal Ordinance was changed to 200 won per 5 minutes. At the time of receiving an audit, D-public parking lot also stated that the rate system of 200 won per 5 minutes, which is the charge for the 1-class public off-road parking lot, is applied according to the amendment of the Municipal Ordinance. Even if the private parking lot is operated by the private sector, C is not pursuing the essential profit, but is not a public parking lot, but rather a private parking lot, I think it individually.” (Defendant I Green 18-19, 367).

C) After and after the period of management and operation of D public parking lots by C, the following circumstances are supported by the circumstance that C or B practitioners or relevant persons of C or B also applied the parking fee of KRW 200 per five minutes as in other public parking lots managed and operated by C to D public parking lots.

(1) On November 28, 2013, C considered D public parking lots to be subject to KRW 200 per five minutes per hour when parking time, and KRW 187,500 per month when parking time, by applying parking fees on the basis of Class 1 area in Nowon-gu, to the regular meeting held by the Gu office on November 28, 2013 (No. 884 pages, No. 5 of the defense counsel submission);

(2) On December 9, 2013, C sent an official document stating that "as the expiration date of entrustment of a public parking lot managed and operated by C (including D public parking lots) arrives and some new places of business (including D public parking lots) are scheduled to be entrusted, C has requested to enter into a contract, such as the above entrustment management operation contract attached to the official document, (No. 6 of the submission of counsel)." On December 30, 2013, B sent an answer to D public parking lot as "as for D public parking lots, it would be adjusted to meet the above entrustment contract at the time of re-contract 2017 (No. 8 of the submission of counsel)."

(3) On January 3, 2014, C re-reported that D public parking lots will be subject to 200 won per five minutes of time parking hours by applying parking fees based on Nowon-gu Class 1 area for the main business to the regular meeting of the Director General meeting held in B office on January 3, 2014 (No. 9 of the submission of counsel).

(4) On September 15, 2014, C sent a public letter to B stating that "in accordance with the entrustment of D public parking lots to the private sector, C applied the charge system for each public parking lot level in B-Gu according to Article 6 and attached Table 1 of B-gu Seoul Special Metropolitan City Ordinance on the Establishment and Management of Parking Lots, and applied the charge system for each public parking lot in B-gu to promote the unification of the public parking lot charge system for the management of the private sector by applying the fee system for the fee for the public parking lot under the jurisdiction of the private sector." (No. 13-1 of the submission of counsel) to D public parking lots, and the B-gu approved it on September 16, 2014 (No. 13-2 of the submission of counsel).

(5) As above, C had expressed his/her previous position to impose the parking fee of KRW 200 per 5 minutes as to D public parking lots through the time reporting at the regular meeting held on November 28, 2013 and January 3, 2014 and the request for the entrusted management and operation contract made on or around December 2013. It seems that B/Gu practitioners or related persons did not raise any objection or objection to B/Gu, and it did not have any objection or objection to the above situation, and it would be considered that B/Gu residents or related persons determined the parking fee of the public parking lot and C is merely an institution for the management and operation of the parking lot, and C/C does not have any reason to impose the parking fee of KRW 20 per 20,000,000,000,000,000,0000,000,000,000,000,000).

2) In light of the following circumstances, C cannot be deemed to have any unfair instruction or involvement of the Defendant in collecting the parking fees for D public parking lots from January 1, 2014 to KRW 300 per five minutes from the previous '300 won per five minutes', and as long as the Defendant applied the level of parking fees imposed on other public parking lots within the territory of B like the opinions of the practitioners in the process of setting the parking fees for D public parking lots, it is difficult to deem that C had an intention to arbitrarily reduce the parking fees for the Defendant to manage and operate D public parking lots and give unfair financial gains to E and to inflict significant financial losses to B.

A) There is no evidence to acknowledge that C had any unfair instruction or involvement by the Defendant in relation to the payment of parking fees to C employees for the management and operation of D public parking lots at KRW 200 per five minutes.

(1) The F.I.D. stated to the effect that the F.I.D. 2 was 1, 300 won per five minutes of the D public parking lot; however, the F.I.D. 2 was 1, 300 won per five minutes of the F.I.D. Report to the effect that the F.I. 2, 300 won of the F.I.D. Report to the effect that the F.I. 2, 300 won of the F.I.D. Report to the effect that the F.I. 2, 300 won of the F.I.D. Report to the effect that the F.I. 1, 300 won of the F.I.D. Report to the effect that the F.I. 1, 2000 won of the F.I.D. Report to the effect that the F.I. 200 won of the F.I.D. Report to the effect that it was 1,2000 won per five minutes of the plan.

(2) From January 1, 2014, C intended to apply the parking fee of KRW 200 per five minutes to D public parking lots, but in the D public parking lot operation plan established on December 2, 2013, C estimated the balance of parking lot operation by applying the parking fee of KRW 300 per five minutes as follows:

【Operational balance (Presumption)】

* The analysis of re-Analysiss (e.g., forecast of changes according to competition changes) after the operation of the three months [ January 2014].

A person shall be appointed.

○ Time Parking: 5.5 vehicles' moving ratio, average parking fee of 4,800 won

-5.5 】 4,800 won 】 342 】 351 days (except for legal leave 13 days in department stores), 3,169.108,000 won;

- 538,748,00 won applied at the discount rate of a public off-road parking lot B

- 3,169,108,538,748,00 won 2,630,360 won

① However, F estimated that D public parking lots will bring about about KRW 2,459,00,00 a year by applying the parking fee of KRW 600 per 10 minutes on January 17, 2013 (No later than 878 pages), while formulating the D public parking lot operation plan as of December 2, 2013, it stated the above numbers as it is. ② The above operation plan was proposed by F, F, the manager of the parking project, K, the president of the K, and the Defendant, the president of the K, the head of the project headquarters, successively approved the F, with the approval of F, the F, "20,00 won per 5 minutes", but F was not aware of the fact that the F applied the operation balance analysis data that applied the D public parking lot to KRW 2,459,00 per 5 minutes per annum or 300 per 5 minutes per annum, but it was not aware of the daily leader or the Defendant's final head of the K-K or the Defendant's statement (the presumption).

In light of the fact that there is no evidence to see that the criteria for parking fees of KRW 300 per five minutes are applied in the operation plan of the D public parking lot established on December 2, 2013, the mere fact that the criteria for parking fees of KRW 300 per five minutes were applied, or that the defendant was aware of such fact, cannot be deemed to have committed an act, such as concealing the fact.

B) On April 2014, the Defendant did not mention that the reason for the reduction of revenues was reduced to KRW 200 per 5 minutes by deeming that the reason for the reduction of revenues to the Gu Council around April 2014, such as the reduction of parking spaces, the reduction of monthly regular parking tickets, and the reduction of the user of the department store due to the aggravation of the market economy. However, G, which was examined at the time, was engaged in duties according to the D public parking lot operation plan (draft) prepared around December 8, 2013, and thus, did not have a negorithic rate under the entrustment contract. Since it was not known that the reason for the reduction of revenues was changed when analyzing the cause for the reduction of revenues, there was no concept of 300 won per 5 minutes when analyzing the cause for the reduction of revenues, and there was no reason for the reduction of the parking fees to KRW 100 per 5 minutes in the process of submitting the direction to the defense counsel, and there was no reason for the reduction of revenues by the Defendant.

C) Although the D public parking lot is mainly used by E users, it is deemed that this falls under the public parking lot and it is necessary to consider not only the increase of profit in its management and operation, public convenience, equity with other public parking lots, and reasonable level of parking fees. As seen earlier, as long as the Defendant applied the level of parking fees imposed on the public parking lot located in B as in the opinion of the working parties in the process of setting the parking fees for the D public parking lot, it is difficult to deem that the Defendant was aware that the above collection of parking fees would give unfair property benefits to E and cause considerable property damage to B.

3. Conclusion

Therefore, since the facts charged in this case constitute a case where there is no proof of a crime, the court acquitted the defendant under the latter part of Article 325 of the Criminal Procedure Act, and publicly announced the summary of the judgment of the defendant under Article 58

Judge of the presiding judge;

Judge Jin-hun

Judges Park Jong-chul

1) C is a local public enterprise affiliated with the Gu, which professionally manages and operates sports facilities, parking-related facilities, etc. entrusted by the Gu, and is entrusted with more than 50 public parking lots within the Gu.

2) hereinafter referred to as "the number".

3) The main revision related to parking fees is to impose parking fees for 10 minutes to 5 minutes.

4) The above amendment ordinances merely impose a parking fee on a 10-minute unit, and there was no change in the parking fee itself. However, as the rate system of a public parking lot managed and operated by C was changed en bloc to a 200 won per 5-minute unit due to the enforcement of the above amendment ordinances, C seems to have been thought that the above standard is applied to D public parking lots as it is, like other public parking lots. It is further examined in detail.

5) hereinafter referred to as “Recording.”

6) In the consignment management and operation contract attached to the official document, the above consignment management and operation contract states that 200 won per 5 minutes shall be imposed by applying the parking fee for the Class 1 area (No. 7 of the submission of counsel).

7) In relation to this, F stated that “I, at the latest at the end of 2013, inform the practitioners of the Gu Office B of the internal policies of C to apply the parking fee of KRW 200 per 5 minutes for D public parking lots (or F. F. F. F. 36-42 pages), and G stated to the effect that “I, at the end of 2013, consulted with the officials of the Gu Office B in charge of the work of D public parking lots from time to time (or at the end of 2013),” and I stated that “I, in the case of materials reported to the Secretary-General, has undergone a review of the relevant department before the ordinary meeting is held” (Article I: 41-42 pages).