Defendant 1 and two others

Defendant 1, 3 and the Prosecutor

Jung-Jin Park

Law Firm Han-hun et al., Counsel for the defendant-appellant

Seoul Central District Court Decision 2000Gohap1304 Delivered on June 11, 2003

Of the judgment of the court below, the guilty part against Defendant 1, the violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (Bribery), and each part of the acquittal against Defendant 3 shall be reversed.

Defendant 1 shall be punished by imprisonment for not less than two years and six months.

The five days of detention days before the sentence of the lower judgment shall be included in the above sentence against Defendant 1.

One industrial knife (No. 1) seized shall be confiscated from Defendant 1.

Of the facts charged in the instant case, the Defendant 1 and the Defendant 3 violated each Livestock Industry Cooperatives Act, and the Defendant 1’s interference with each of their duties and assistance in each of their duties shall be acquitted, respectively.

Of the facts charged in the instant case, the prosecution against Defendant 3’s defamation of the publication is dismissed.

The appeal filed by the prosecutor against the defendant 1 against the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Misappropriation) and the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Misappropriation) and the

1. Summary of grounds for appeal;

A. misunderstanding of facts or misunderstanding of legal principles

(1) Defendant 1, 3

(A) As to the portion of defamation by publication as indicated in the holding of the court below, the content of the advertisement (name omitted), which encourage the sale of import decline machines, arbitrarily distributes the policy funds on the basis of whether the Minister of Agriculture and Forestry pros and cons against the integration, and claims for the reduction of the value of the feed that is not realistic, based on the true facts, is that the advertisement made without the purpose of slandering the Minister (name omitted) with the content solely pertaining to the public interest of the Livestock Industry and the interests of the livestock industry, constitutes a violation of defamation by publication due to false facts.

(B) As to the violation of the Livestock Industry Cooperatives Act as stated in the judgment of the court below, it was true that activities against the consolidation of cooperatives were conducted as shown in the facts constituting the crime in the judgment below, and that this was executed by the general assembly or the board of directors, and the members of the Livestock Industry Association were executed by the total amount. Thus, the purpose of the fund was also consistent with the purpose of the use of the fund and its use is also consistent with the existence and development of livestock industry cooperatives' business purposes.

(2) Defendant 1

Although the above defendant's act was conducted at the floor of the National Assembly, the above defendant did not have the above purpose.

(3) Defendant 3

The department in charge of the publication of the advertisement of the Korea Livestock Cooperative Federation was a public relations room under the direct control of the president of the Korea Livestock Cooperative Federation, and the above defendants asserted that the above defendants did not participate in the publication of such advertisement as vice president of the Korea Livestock Cooperative Federation, and did not approve the execution of the fund. Thus, the above defendants did not participate in the crime of this part.

(4) Prosecutor

As the grounds for appeal against the acquittal portion of the judgment below, despite the sufficient recognition of this part of the charges based on the evidence submitted by the prosecutor, the court below erred by misapprehending the facts or not guilty of the remainder of the charges, which affected the judgment.

B. Unreasonable sentencing

Defendant 1 and 3 asserts that the sentence of the original judgment is too heavy in light of the various circumstances about them, while the prosecutor asserts that the sentence of the original judgment is too heavy, the sentence against Defendant 1 and 3 is too unfasible and unfair.

2. Ex officio determination on Defendant 3

Before determining the misunderstanding of facts or misapprehension of legal principles as to the defamation of Defendant 3’s publication, this paper examined ex officio prior to the determination of the above Defendant and the prosecutor’s assertion of mistake or misapprehension of legal principles.

The summary of this part of the facts charged is as follows: (a) Defendant 3, in collusion with Defendant 1 and Nonindicted 4, who is the regular director of the Livestock Cooperatives Federation, opposed to the Government’s reform and integration of cooperatives; (b) for the purpose of slandering the Minister of Agriculture and Forestry on January 12, 200, the Minister of Agriculture and Forestry recommended (name omitted); (c) the Minister of Agriculture and Forestry to sell (name omitted); and (d) the Minister of Agriculture and Forestry’s recommendations to sell agricultural chemicals, fertilizers, and livestock feed, etc. at the time of the consolidation of cooperatives; and (d) the Minister of Agriculture and Forestry’s false advertisements to the effect that “the Minister of Agriculture and Forestry’s withdrawal of the public trial by publicly alleging the false facts in the publication (name omitted); and (e) the Ministry of Agriculture and Forestry’s removal of the victim’s 20th public trial by publicly pointing out the following facts: (e) the Ministry’s removal of the victim’s 3rd public trial, which is the second public trial of this case’s 20th public trial.”

3. Judgment on the misapprehension of facts or misapprehension of legal principles by Defendant 1 and 3

A. As to Defendant 1’s defamation of the publication as indicated in the lower judgment against Defendant 1

(1) "Purpose of slandering a person" under Article 309(1) of the Criminal Act refers to the purpose of slandering a person, which requires the intention or purpose of a hazard, is in conflict with one another in the direction of an actor's subjective intention, and thus, whether a person is purposely to defame a person should be determined by comparing and considering the overall circumstances such as the content and nature of the relevant facts, the scope of the counter-party to whom the relevant facts are published, and the method of expression itself (see Supreme Court Decision 2001Do7095, Dec. 10, 2002). In addition, the term "purpose of slandering a person" under Article 309(1) of the Criminal Act refers to the act of slandering a person, which requires an offender's intention or purpose, and thus is not subject to punishment when a person is related to public interest under Article 310(1) of the Criminal Act, the provisions not subject to punishment should be applied to acts under Article 309(1)4 of the Criminal Act, and the purpose of which is not applied to acts under Article 1309(14).7.

(2) However, according to the evidence of the court below, the Minister of Agriculture and Forestry, after consultation with the Livestock Industry Federation on the purport that the highest price in terms of supply and demand of livestock products is too poor, and thus stabilizing the price of livestock products, sent to the president of the Korea Livestock Industry Association on December 9, 199 an official letter "request for cooperation against annual and permanent demand for the stabilization of small prices". The defendant's assertion to the effect that the above defendant was inappropriate for the Minister of Agriculture and Forestry in light of the following reasons: (a) in recommending each unit cooperative as a person subject to the promotion of distribution in connection with the reform of the cooperative in order to actively recommend the cooperative reform and induce each unit cooperative to have an active attitude in the reform of the cooperative; (b) the defendant sent an official letter "recommendation of the cooperative subject to the promotion of distribution cooperatives" as of May 2, 200; and (c) the defendant's assertion to the effect that the above defendant's reputation was damaged as of the date of import decline and sales, and the defendant's assertion to the above part of the defendant's reputation as of the above.

B. As to the violation of the Livestock Industry Cooperatives Act against Defendant 1 and 3

(1) Summary of the facts charged

Defendant 1 and 3 conspired with Nonindicted 4, who is a regular director of the Livestock Cooperative Federation. An executive officer or executive officer of the Livestock Cooperative Federation shall not use funds for purposes other than livestock cooperative business objectives. On July 30, 1999, five daily newspapers, including Joseon Day, and three specialized areas, including agricultural, fishery, and livestock farms, “low-class class class ractionism,” but not low-class class 9. From July 9, 1999 to April 1, 200, 49; 41 times in full; 50,807,000 won in total; 93,400,000 won in total with 931,40,512,000,000 won in total with expenses for integrated opposing meetings; 130,500,000,000 won in total with expenses for production of materials for integrated public relations; 30,500,0000 won in aggregate with expenses for integrated public relations activities, 1630,50,060, and opposition for integration.

(2) Summary of the judgment of the court below

Article 143 of the former Livestock Industry Cooperatives Act (amended by Act No. 6018, Sept. 7, 199; hereinafter the same shall apply) provides that the executives or executive officers of the National Federation shall use funds for purposes other than the National Federation's business purposes. The National Federation shall be subject to criminal punishment. However, the concept and scope of "business purposes" provided for in the above Article of the former Livestock Industry Cooperatives Act shall not be directly provided for in the same Article: Provided, That Article 1 of the same Act provides that the purpose of the promotion of the livestock industry and the improvement of the economic and social status of members shall be balanced development of the national economy by promoting the promotion of the livestock industry and enhancing the balanced development of the national economy. Since the purposes of the above Article 123 (1) of the former Livestock Industry Cooperatives Act (amended by the Agricultural Cooperatives Act No. 6018, Sep. 7, 199; hereinafter the above Defendants shall not be deemed to have used funds for the reform of cooperatives, such as the above facts charged, for the purpose of the National Assembly or the National Assembly's Association's Association's Act.

(3) Judgment of the court below

As to whether the above Defendants’ financial expenditure as stated in the facts charged is the use of funds other than the “business objectives of the Federation” as stipulated in Article 143 of the former Livestock Cooperatives Act, it is somewhat inappropriate to use the above funds. However, as seen below, it is difficult to conclude that the above Defendants had the awareness that the above financial expenditure was not for business purposes under the circumstances where the former Livestock Cooperatives Act does not directly stipulate the concept or scope of the above “Federation’s business objectives”.

First, according to the fact-finding report by the Minister of Agriculture and Forestry, the Ministry of Agriculture and Forestry reported matters concerning the budget and settlement of accounts of the Agricultural and Livestock Cooperatives Federation every year. However, the Ministry of Agriculture and Forestry recognized that the National Agricultural and Livestock Cooperatives Federation did not point out the expenditure of funds, such as the daily advertising cost, research service cost for the integration of agricultural and livestock cooperatives, the payment of the research service cost for the integration of agricultural and livestock cooperatives, the expenses for advertisement for the opening of Round or rice, and the expenses for presidential appointment, etc. for the use of funds for purposes other than its business purposes. In light of this, it is difficult to deem that the National Agricultural and Livestock Cooperatives Federation of Korea was the same as the payment of funds to various external institutions and the disbursement of the support fund for the promotion project.

Second, the use of funds for the above facts charged was made through legitimate procedures such as obtaining a resolution of the general assembly or the board of directors.

Third, according to the above fact-finding inquiry report, it can be acknowledged that the Minister of Agriculture and Forestry does not obtain approval for the expenses for self-organization maintenance, such as the payment of various salaries to the executives and employees of the Korea Livestock Cooperative Federation. As such, among the details of the use of funds of the Korea Livestock Cooperative Federation, it does not fall under any of the projects stipulated in Article 123 (1) 1 through 20 of the former Livestock Cooperatives Act, but there are parts not approved by the competent Minister. Thus, it is difficult to view the use of funds other than those stipulated in Article 123 (1) of the former Livestock Cooperatives Act as the use of funds for all other than the "business purposes of the National

4. Judgment on the prosecutor's assertion of mistake or misapprehension of legal principles

A. As to the violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (Bribery) against Defendant 1

(1) Prior to the prosecutor’s judgment on the prosecutor’s assertion of mistake of facts, the prosecutor applied for a change in the indictment to change the facts of the acceptance of bribe to “selective” and the fact of the third party acceptance of bribe before the judgment on the prosecutor’s assertion of mistake of facts, and the object of the trial was changed to the permission of a member of the party, and thus, the part of innocence regarding the receipt of bribe

(2) Regarding the acceptance of a third party among the modified part

(A) Summary of the facts charged

On December 1, 1995, Defendant 1: (a) requested Nonindicted 2, the operator of Nonindicted 1, the operator of Nonindicted 2, the company located in Seopopo-si, Seoul hotel located in Jeju-si; (b) requested the designation of the tourism zone under the Special Act on Jeju-do Development; and (c) requested Nonindicted 2, the operator of Nonindicted 1, the company located in Jeju-do, and applied for the designation of the tourism zone under the Special Act on Jeju-do Development; and (d) requested Nonindicted 2, the said Defendant’s assistance in the extension of tourism business in Jeju-do, and requested Nonindicted 2, the company located in Jeju-do, to provide convenience for its business in Jeju-do; and (e) requested Nonindicted 2, the (district omitted), the company located in Jeju-do, to transfer the amount of KRW 2,000,000 to the tourism zone under the Special Act on Jeju-do Development; and (e) transferred the amount of KRW 2,000,000,000 to the Governor of Jeju-do.

(B) The summary of the judgment of the court below (the part concerning whether Defendant 1 was aware of the quid pro quo in the judgment of the court below was extracted)

① First, in relation to Nonindicted 2’s statements, it is essential to obtain the help of Defendant 1, the Jeju Do Governor, who was the Jeju Do Governor, in order to obtain the designation of the tourist zone and to carry on the business in Jeju-do. Accordingly, Nonindicted 2 stated that the (district name omitted) district was introduced by Defendant 1 through Nonindicted 7, and that it was delivered to Defendant 1 by pretending that the money recorded in this part of the facts charged was contributed to the welfare project in order to be designated as the tourist zone, and in light of the purport of the above statement, Nonindicted 2 would have proposed the contribution of money to Defendant 1 for the welfare project, but in fact, it appears that Defendant 1 would have attempted to give a bribe.

② However, the mere fact that a donor who provided a bribe intended to offer a bribe is insufficient to establish the crime of bribery, and the public official who received money or goods must receive it with the knowledge of the fact that the bribe is a bribe. As to whether Defendant 1 received money or goods from Nonindicted 2 as an intention to receive a bribe in return for the above Defendant’s duties, there is insufficient evidence to acknowledge it by only Nonindicted 2’s statement alone.

③ According to the evidence of the lower court, Nonindicted 1: (a) Nonindicted 2, who was aware of Nonindicted 1’s opening of Nonindicted 1’s new account in the name of Nonindicted 6 Nonindicted 1’s Jeju-do Tourism Complex on July 195; (b) Nonindicted 1’s opening of Nonindicted 1’s new account in the name of Nonindicted 6 Nonindicted 1’s name, and (c) Nonindicted 6’s opening of Nonindicted 1’s new account in the name of Nonindicted 6’s name; (d) Nonindicted 8’s opening of Nonindicted 1’s new account in the name of Nonindicted 6’s name; and (e) Nonindicted 1’s opening of Nonindicted 1’s new account in the name of Nonindicted 6’s new account; and (e) Nonindicted 3’s opening of Nonindicted 1’s new account in the name of Nonindicted 6’s new account; and (e) Nonindicted 6’s opening of Nonindicted 9’s new account in the name of Nonindicted 1’s new account; and (e) Nonindicted 1’s new account.

④ According to the above facts, the above defendant was aware that he would want to engage in welfare projects on July 1995, that he would like to introduce a new person who will be responsible for such projects, and that Nonindicted 6, one’s wife, recommended that Nonindicted 6 be entrusted with welfare projects because he would have been interested in the above projects. At the time, Nonindicted 2 would still have not known that the above defendant would have been able to be designated as a tourist zone with respect to the (district omitted) zone. However, at the time of transfer of money to the account of Nonindicted 2, the above defendant could not be viewed as having requested for the designation of the above tourist zone in the name of Nonindicted 6, which was the name of the above Nonindicted 2 to have been contributed by Nonindicted 2 to the above non-indicted 6, and the defendant could not be viewed as having been aware that the above defendant had been able to have been able to have been able to have been able to have the defendant designated as a tourist zone in the name of the above non-indicted 2. However, in light of the circumstances and the above fact that the defendant was 2606.

(C) Judgment of the court below

(1) Facts of recognition.

On June 2, 1994, the Commission excluded a zone from the designation of a tourist zone for the conservation of the mountainside area. On September 29, 1995, in Jeju-do, a public letter called the National Land Utilization Plan Revision and Improvement Plan was sent to the district in the quasi-urban area (quasi-urban area). If the land use is changed, in the quasi-urban area, it was de facto impossible to carry out golf courses, large hotels, and contact projects in the quasi-urban area. Thus, the non-indicted 18, who was the chief of the management department of the non-indicted 1 corporation, was designated as a tourist zone from January 1, 1995 to the non-indicted 2, it was urgent for the non-indicted 18 to escape from the above change of use (the investigation record5-4 rights37, 420, 421).

On August 31, 1995, in Jeju-do, the Minister of Patriots and Veterans Affairs issued guidelines for the plan for the supplementation of a tourism district in accordance with the Jeju-do comprehensive development plan to each Si/Gun. On August 31, 1995, Western Viewing Viewing Viewing Viewing Viewing Viewing Viewing Y, Non-Indicted 1 Co., Ltd. (district name omitted) in the district (district name omitted), the Culture and Port Construction Co., Ltd. (district name omitted) in the district, the Handong Co., Ltd. (district name omitted), and Non-Indicted 19 in the Gangseo-gu Office of Jeju-do on October 11, 1995. (Investigation record 5-4 right 336, 3

B. On July 1, 1995, Defendant 1 was assigned to the Jeju Branch, and around that time, Defendant 1 was introduced to Nonindicted 2. However, Nonindicted 2 was found to have been directly Defendant 1 after the two months, and at that time, Defendant 2 became aware of the fact that he was a son of Nonindicted Company 1, who was operating a hunting ground in Jeju-do (the trial record 80 pages).

㉣ 공소외 2 부부는 1995. 9.경 위 공소외 18에게 서귀포시의 소년소녀가장을 돕고 싶은데, 명단을 입수해 보라고 하여 위 공소외 18이 서귀포시청 사회복지과에 문의하기도 하였다(수사기록 5-4권 422쪽).

According to the statement of Non-Indicted 10 on the process of the establishment of the Beneficiary Foundation, Non-Indicted 10, who was the head of the main diplomatic mission of the government branch of the government branch of the government branch of the government branch of the government branch of the government branch of the government branch of the government branch of the government branch of the government branch of the government branch of the government branch of the government branch of the government branch of the government branch of the government branch, the government branch of the government branch of the government branch of the government branch of the government branch of the government branch of the government branch of the government branch of the government branch of the government branch of the government branch of the government branch of the government branch of the government branch of the government branch of the government branch of the government branch of the government branch of the government branch of the government branch of the government branch of the government branch of the government branch of the government branch of the government branch of the government branch of the government branch of the government branch of the government branch of the government branch of the government branch of the government branch of the government branch of the government branch of the government.

In accordance with the instructions of Nonindicted 1, 196, the above Nonindicted 10 received KRW 2 billion from Nonindicted 2, who is the chief secretary of Nonindicted 1’s office, to Nonindicted 6’s account on January 12, 1996. Although it is unaware of the reason, the above KRW 2 billion was transferred to Nonindicted 2’s account on January 2, 199 upon Nonindicted 1’s request from Nonindicted 6, and returned KRW 1 billion to Nonindicted 1’s account. Nonindicted 2 transferred KRW 1 billion to Nonindicted 1’s account on January 2, 1996, and Nonindicted 1’s total amount of KRW 1 billion to Nonindicted 2’s account on the 23rd of the same month, it is difficult for Nonindicted 2 to make the above KRW 1 billion to be returned to Nonindicted 1’s account under the name of Nonindicted 1, 1996, and the aggregate amount of KRW 2 billion was transferred to Nonindicted 2,500,000,000 won to Nonindicted 2.

Pursuant to the first report of the above research institute on Apr. 12, 1996, the Minister of Maritime Affairs and Fisheries requested services from the Jeju-do to the Jeju Tourism Industry Institute on Nov. 18, 1995 on the validity of the designation of the tourism zone. On the other hand, the Minister of Maritime Affairs and Fisheries requested services from the said research institute on the basis of the capacity to implement the first report (No. 5-4 pages 376 of investigation records). On July 18, 1996, Jeju-do requested services from the said research institute (No. 5-4 pages 376 of investigation records). On the other hand, the applicants of the (No. 1996), among the applicants of the (No. 1996), the official document sent to the effect that Nonindicted 20, a public official in charge of Si/Gun viewing, who is a public official of Si/Gun, may not understand the designation of the tourism zone (No. 314).

As of June 2, 1997, Non-Indicted 2, a change in the country of war, made Non-Indicted 9 to Non-Indicted 9 on the part of Non-Indicted 9 on the part of Non-Indicted 9, the beneficiary foundation need to pay money, asked the number of account to the head of the mission of the Do to return money, and Non-Indicted 9 asked the number of account to the mission of the Do governor, and Non-Indicted 9 remitted KRW

On December 4, 1997, Nonindicted Co. 1 sold to Nonindicted Co. 53 the amount of KRW 1 million out of the 1 million-day tourism district designated as a tourism district at KRW 55,00,00 per two times more than before the tourism district was designated (No. 5-4, 396, 397 pages of investigation records).

(2) Judgment

The term "illegal solicitation" in the crime of bribery to a third party refers to illegal remuneration or unjust profit delivered to a third party by mediating an unjust solicitation in connection with the public official's duties, and there is sufficient awareness that it is given to the public official and the property deliver the property to the third party. Whether or not the third party who received the property recognizes that it is a bribe does not affect the establishment of the crime. In addition, the term "illegal solicitation" in the crime of bribery to a third party includes not only illegal solicitation but also illegal cases, and is against social rules or the principles of good faith and good faith. In light of the fact that the crime of bribery to a third party is protected by the law that the fair performance of duties by the public official, trust in the society, and the uncertainty of the act of bribery to a third party is protected, the issue of whether the crime of bribery to a third party constitutes "illegal solicitation" should be interpreted as a broad concept rather than "illegal solicitation" in the crime of bribery to protect fairness and sincerity in the affairs of another party (in case of Japan, it is only a requirement for a third party solicitation, and it does not require an illegal solicitation).

First, Non-Indicted 2, who operates the construction of (name omitted), had the position to be designated as a tourist zone because (name omitted) areas are faced with a crisis in which the use of land would be changed if they were not designated again as tourist zones, and if there were no such pending issues, he did not deposit the large amount of KRW 3 billion with the beneficiary foundation (the original court recognizes that Non-Indicted 2 had the intent to give a bribe to Defendant 1).

On the other hand, it seems reasonable to judge that Defendant 1 had been aware of the fact that Defendant 1 had been paid to Nonindicted Company 1 in consideration of the fact that Defendant 2 and Defendant 1 had no intent to accept a bribe, and that Defendant 1 had first deposited 30 million won in the tourism district; first, Defendant 1 was in a position to have absolute influence on the designation of the tourism district as the governor; (i) (ii) was excluded from the tourism district on the ground that it was in the middle and a year ago; (iii) was again designated as a tourism district without any change; (iv) was designated as only Nonindicted Company 1 among those applied for a tourist district in the name of the district without any specific change; and (v) was not a reason that was excluded from the designation of the tourism district; and (v) was not a reason that was excluded from the designation of the tourism district; and (v) was transferred from the name of Nonindicted Company 16 to the above account in consideration of the fact that Defendant 1 was transferred to Nonindicted Company 20.

B. As to Defendant 1’s obstruction of business

(1) Prior to the judgment on the prosecutor’s assertion of mistake of facts, prior to the judgment on the prosecutor’s argument, the prosecutor applied for a change in the indictment to the point of obstruction of duties or obstruction of duties, and the object of the trial was changed by permitting a member’s permission. As such, the part of acquittal as to obstruction of duties among the judgment of the court below cannot be maintained any more.

(2) Determination of party members on the changed portion

① According to the evidence of the lower court, Defendant 1 maintained the position of opposing the integration of cooperatives in the process of the establishment of the Agricultural Cooperatives Act from around 1998 to around 199. The above Livestock Cooperatives Federation’s position of opposing its employees on the ground that the right to life of the livestock cooperatives employees is infringed, the livestock cooperatives are reduced, and the livestock industry is retired. Officers of the Livestock Cooperatives, including Defendant 1, etc., such as the above members of the Livestock Cooperatives Federation and the Labor Cooperatives Federation shall attend the meeting of the National Agricultural Cooperatives Federation on November 29, 199 to eliminate disadvantages in relation to criminal punishment against the members of the above Livestock Cooperatives in the course of the 199’s integrated storage of cooperatives. The acts of the executives, employees, and labor union members of the National Agricultural Cooperatives Federation during the 20th campaign of the National Agricultural Cooperatives Federation shall be recognized as loyalty for the independence of livestock industry and the existence of the livestock industry, criminal liability and benefits, and shall not be disadvantageously affected by the labor-management and labor-management cooperation. The National Agricultural Cooperative Federation’s decision and the National Agricultural Cooperative Federation’s Act’s agreement.

② According to the evidence of the court below as to whether Defendant 1 conspiredd or aided and aided the act of interfering with the activities of the above livestock cooperative's members, Defendant 1 was the president of the Livestock cooperative federation. However, in a concrete manner, Defendant 1 mainly used the methods of appeal, etc. of public opinion through constitutional complaint, advertisement and publicity, and requested the members of the Livestock cooperative federation to refrain from excessive demonstration, etc. Thus, Defendant 1 did not appear to have any intention to specifically interfere with the duties of the employees of the committee on the establishment of the National Agricultural Cooperative and the National Agricultural Cooperative Federation. Further, Defendant 1 did not appear to have intended to specifically interfere with the duties of the members of the committee on the establishment of the livestock cooperative, and concluded an agreement with Defendant 1 to consider that Defendant 1 participated in or was engaged in the labor union, such as an assembly, demonstration, etc. to ensure that there is no disadvantage in the status, and that there was no evidence to acknowledge that there was any interference with the duties as stated in the above facts charged, or that there was no assistance in each crime.

C. As to the defamation of a publication due to the assertion of false facts against Defendant 1

We examine whether or not the above defendant alleged false facts in committing a crime of defamation in publications as stated in the judgment below.

(1) 원심의 각 증거에 의하면, 농협, 축협, 임협, 인삼협 등에 대하여 개혁이 필요하다고 판단한 정부가 1998. 4. 13.경 농림부 내에 협동조합개혁위원회를 설치하고 농림부는 1999. 3. 8.경 ‘협동조합개혁방안’을 발표한 후, 1999. 8. 13. 농업협동조합법이 공포되고, 이에 따라 농림부가 1999. 9. 10. 통합 농협중앙회의 정관을 작성하는 등의 설립사무를 추진하는 등의 협동조합의 개혁을 추진하였는데, 피고인 1은 1999. 7. 9.경 축협중앙회의 회장으로 당선된 후, 위와 같은 협동조합의 개혁은 협동조합의 기본원칙을 벗어난 일방적인 구조조정에 불과하여 결국 축협 회원들의 이익에 반하는 것이라는 이유로 헌법소원, 국회에서의 할복자해 등의 방법으로 이를 반대하는 활동을 하여 오고 있었고, 한편 당시 (성명 생략) 농림부장관은 1999. 12. 9. 한국수퍼체인협회장에게 ‘소값 안정을 위한 연말연시 및 설수요 대비 협조요청’이라는 제목 아래 “2001년 쇠고기 시장의 완전개방을 앞둔 상황에서 최근 산지 소값은 수급불균형 등으로 인하여 310만 원(큰수소 500kg 기준)대로 높은 수준이 계속되고 있습니다. 더구나 연말연시와 설 성수기가 다가옴에 따라 쇠고기 수요가 더욱 늘어날 것으로 예상되는바, 귀회 회원사인 백화점, 할인점 등 대형유통업체로 하여금 국내산 쇠고기보다는 수입쇠고기를 이용한 갈비세트, 선물세트 등을 다량 제작하여 향후 성수기에 대비토록 하여 주시기 바랍니다.”는 내용의 공문을, 2000. 5. 2.에는 각 축협조합장들에게 ‘협동조합 유통활성화사업 대상조합 추천’이라는 제목 아래 “협동조합개혁과 연계하여 산지조합을 농·축산물 유통개혁의 핵심주체로 육성하기 위하여 추진하고 있는 협동조합 유통활성화사업 대상자를 다음과 같이 선정하여 유통활성화사업 지원위원회에 추천하였음을 알려드립니다. 1단계로 사업신청조합(29개) 중 협동조합 개혁에 적극적인 6개 조합과 축협중앙회 비회원인 서산한우, 도드람 중부양돈조합 등 8개 조합을 사업대상자로 우선 추천하였으며 향후 협동조합개혁 추진상황 등을 참작하여 추가지원 대상자를 추천할 계획입니다.”는 내용의 공문을 각 보내고, 일간지에 ‘협동조합 통합시 사료 등을 반값 이하로 줄일 수 있다‘는 내용의 광고를 게재한 사실, 이에 위 피고인들은 2000. 1. 12. 조선일보, 동아일보, 중앙일보, 한국일보에 ‘수입쇠고기 판매를 권장하는 농림부장관은 과연 어느 나라 장관입니까? -우리는 더 이상 농림부장관을 믿을 수가 없습니다-’라는 제목 아래 “ (성명 생략) 농림부장관은 1999년 12월 9일 장관 명의의 공문을 통해 ‘연말연시와 설 성수기가 다가옴에 따라 국내산 쇠고기보다는 수입쇠고기를 이용한 갈비세트, 선물세트를 다량 제작, 향후 성수기에 대비토록’ 수입쇠고기 소비 촉진에 앞장서는 매국행위를 저질렀습니다. 지난해 5월과 11월 두차례나 「축산발전 투융자계획」을 발표하면서, 2004년까지 축산업에 투자되는 4조 5천억 원의 절반 이상을 한우산업에 집중투자하겠다고 공언했던 농림부장관이 한편으로는 수입쇠고기 판촉을 촉구하는 이중적 행태를 자행하고 있는 것입니다. 또한 농림부장관은 3개 협동조합 중앙회가 통합되면 농약과 비료, 사료 등을 지금보다 반값 이하로 공급할 수 있다고 광고를 통해 농민을 기만하고 있습니다. (성명 생략) 농림부장관은 국민의 여론에 밀려 퇴진당하기 전에 스스로 장관직에서 사퇴하는 것만이 진정으로 우리나라 농·축산업을 살리는 길임을 자각하기 바랍니다.”라는 내용의 광고를, 2000. 5. 24. 조선일보에 ‘국민의 혈세가 장관의 뒷주머니 용돈입니까? -축협 조합장들을 돈으로 유혹하고 있는 농림부장관-’이라는 제목 아래 “농림부장관은 사업을 빙자하여 농·축협 통합에 찬성하였다는 이유 하나만으로 특정 조합을 자금지원 대상으로 추천(공문서 참조)하였으며, 농·축협 강제통합이 제대로 진행되지 않자 국민의 혈세를 미끼로 조합을 회유하는 한심한 일만을 해대고 있습니다. 국민의 혈세를 가지고 농·축협 강제통합을 밀어 붙이기 위한 수단으로 사용하는 농림부장관의 비열한 행태는 즉각 중단되어야 합니다.”라는 내용의 광고를 각 게재한 사실이 각 인정된다.

(2) In order to establish defamation by publication due to a statement of false facts as provided in Articles 309(2) and 307(2) of the Criminal Act, the criminal should publicly indicate false facts while recognizing the criminal as false, and should have been aware of such false facts as impairing the people's social evaluation. In determining whether the alleged facts are false, if the important matters are consistent with the objective facts in light of the overall purport of the alleged facts, even if there is a little difference from the truth or somewhat exaggerated expression (see Supreme Court Decision 99Do4757 delivered on February 25, 2000), it cannot be viewed as false facts (see Supreme Court Decision 99Do4757 delivered on February 25, 200).

(3) However, according to the above facts, the contents of each advertisement posted by the above defendant are composed of expressions to criticize the Minister of Agriculture and Forestry by the contents and expressions, such as the contents indicated in the copy of the above official document as they are, and then, the contents of each advertisement made by the above defendant are printed in the public document of the Minister of Agriculture and Forestry, and the contents of the advertisement are composed of expressions to criticize the Minister of Agriculture and Forestry by stating that the advertisement is being placed in front of promoting the sale of the import decline, or that the president of the Livestock Cooperative is traveling in money to agree with the integration. The contents of the advertisement are different from the truth or somewhat exaggerated expressions. However, the contents of the advertisement are deemed to be true or true, and thus, it is deemed that the whole contents of the statement are true or posted without the awareness

D. As to the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Misappropriation) against Defendant 1 and 2

(1) According to the evidence of the court below, the Livestock Cooperative has approximately 192 member cooperatives, and the Livestock Cooperative Federation has deposited funds, which are surplus funds of each member cooperative, with the nature of reserve requirements, and operated them by incorporating the above funds into the account of mutual financial special account, and investing them in securities, etc., and paid interest on the aforementioned reserve funds and regular reserve funds to each member cooperative. However, the Livestock Cooperative Federation has paid from January 200 to June 20 of the same year on the basis of the reflection of the above mutual financial special account losses and excessive stock investment, etc., the asset management return rate of KRW 2,273 billion was lowered to -4.7%, and approximately KRW 8.4% ( approximately 8% for reserve funds and approximately 8.5% average of 8.5% for regular reserve funds) for each member cooperative, and KRW 2979,209, and KRW 2979,290 for each member cooperative.

(2) However, as to whether Defendant 1, the president of the Livestock Cooperative Federation, and Defendant 2, the vice president of the Korea Livestock Cooperative Federation, obtained property benefits from each unit of association and paid the above interest as an intention to inflict damage on the Livestock Cooperative Federation, there is insufficient evidence to acknowledge it, and there is no other evidence to acknowledge it.

(1) Comprehensively taking account of the evidence of the lower court: (i) the interest accrued each month on the above-mentioned special financial cooperatives shall be paid on January 1 of the following month; (ii) the interest rate of mutual financial funds deposited in the special financial accounts shall be separately determined depending on the current status of profit and loss; and (iii) the special financial accounts shall keep separate accounts of assets, liabilities, profits, and expenses incurred in the performance of the functions of the association; (iv) the current order of mutual financial special accounts shall be handled within the special accounts; and (v) the credit risk of the operating assets of the special accounts shall not be borne by the general accounts (which was revised on September 17, 199 and entered into force on the same day); (v) the amount of losses incurred by the association or the National Federation shall be reduced to 90 million won after the settlement of accounts; and (v) the amount of losses incurred by each of the above special financial funds shall be reduced to 200 million won after the settlement of accounts at the same time as the above 9th operating interest rate was determined by the National Federation.

② According to the above facts, the president of the Livestock Cooperative Federation has the authority to adjust interest rates depending on the situation of profits and losses arising from the operation of the funds for mutual financial special accounts deposited in the mutual financial special accounts. The president of the Livestock Cooperative Federation and the above Defendants, the vice president of the Livestock Cooperative Federation, as managers of the above funds, have the duty to reduce the amount of losses caused by the operation of the funds for mutual financial special accounts by adjusting the interest rates and to take measures to prevent losses to the Livestock Cooperative Federation. However, in managing the funds for mutual financial special accounts, there is no provision regarding which interest rate should be determined at any time or under any condition. However, even if the operation of the funds for mutual financial special accounts causes losses in the operation of the funds for the preceding month without immediately lowering the interest rate, it is difficult to determine whether the funds for each fiscal year should be operated by settling the funds for mutual financial accounts at the closing of each fiscal year, and it is difficult to determine whether the funds for mutual financial special account should be made at any time beyond the total amount of losses paid to each association.

③ However, the above Defendants paid interest to a unit association according to the interest rate determined by referring to the interest rate on the mutual financial special account of agricultural cooperatives and fisheries cooperatives, etc., while reviewing the reduction of interest rate as a result of the occurrence of losses from the operation thereof around January 3, 200 and around February of the same year, but it is expected that there would be improvement of the rate of return due to the increase of interest rate after the total period of April of the same year, while reserving the adjustment of interest rate, there was no loss due to the continuous decline of the share price, but even after reviewing the reduction of the interest rate from May of the same year, Defendant 1 did not appear to have been able to participate in the operation of the mutual financial special account at the time of the National Federation around June 7 of the same year, and even if the above Defendants were to retire from the National Federation around January 30 of the same year, it is difficult for the above Defendants to make a decision on the reduction of the interest rate as the above amount of interest rate, and thus, it is difficult for the above Defendants to have made the above change of interest rate.

6. Conclusion

Therefore, among the judgment of the court below, the part of the judgment of the court below regarding the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Misappropriation) against Defendant 1, the part of the verdict of the court below on the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Misappropriation in trust), the part of the verdict of the court below on the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Bribery) and the prosecutor's appeal against Defendant 2 is dismissed pursuant to Article 364 (4) of the Criminal Procedure Act since the appeal against the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes, the part of the judgment of the court below on the violation of the Act on the Aggravated Punishment, etc. of Livestock Industry (Bribery in trust), the part on the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Punishment, etc. of Specific Economic Crimes (Bribery in trust), and the part on the acquittal of each business and the part on the defendant 3 are reversed as follows.

The facts of the crime and the summary of evidence against Defendant 1 recognized by the court below are newly established under paragraph (3) of the facts of the crime as stated in the judgment of the court below. "3.." The defendant 1 met, on December 1995, the operator of the non-indicted 1 corporation located in Seopopo-si (Seoul Hotel omitted), and the non-indicted 2 applies for the designation of the (district omitted) district as tourism district under the Special Act on Jeju-do Development, and if the tourism business is expanded in Jeju-do, the non-indicted 2 knew the necessity of the above defendant's assistance, and the non-indicted 2 requested the above defendant 3 to provide the same welfare fund for the operation of the 2 billion won and the non-indicted 200,000,000,000,000 won to the non-indicted 10,000,000 won to the non-indicted 2,000,000 won to the non-indicted 9,000,00 won to the non-indicted 26.

The summary of the evidence admitted by this court against Defendant 1 is as follows: “In the summary column of the evidence in the judgment of the court below, the summary of the evidence in the judgment of the court below is added to the witness Nonindicted 22 in the 15th trial record, Nonindicted 18 in the 19th trial record, Nonindicted 10 in the 18th trial record, each of the witness Nonindicted 23, Nonindicted 20 in the 18 trial record, Nonindicted 7 in the 21st trial record, Nonindicted 6 in the 16th trial record, each of the witness Nonindicted 2, Nonindicted 18, Nonindicted 18, Nonindicted 22, Nonindicted 9, Nonindicted 10, Nonindicted 23, Nonindicted 20, Nonindicted 7, and Nonindicted 11 in the 16 trial record, and the statement in the 1.2nd trial record in the corresponding column of the judgment of the court below.”

1. Article applicable to criminal facts;

o Points of the motion of the president of the National Assembly: Article 138 (Selection of Imprisonment or Imprisonment)

o The point of defamation by publication due to each factual presentation: Articles 309(1), 307(1), and 30 (Selection of Imprisonment) of each Criminal Act

o A third party acceptance of bribe: Article 2(1) and (1) of the Act on the Aggravated Punishment, etc. of Specific Crimes and Article 130 of the Criminal Act.

1. Statutory mitigation (violation of the Act on the Aggravated Punishment, etc. of Specific Crimes);

Articles 52(1) and 55(1)3 of the Criminal Act (Self-denunciation)

1. Aggravation of concurrent crimes;

Article 37 (Aggravation of Article 37, Article 38 (1) 2, and Article 50 (Concurrent Punishment of Specific Crimes, etc. under the Act on the Aggravated Punishment, etc. of Specific Crimes, which shall not be Aggravated Punishment, etc. of Specific Crimes, and

1. Calculation of days of detention;

Article 57 of the Criminal Act

1. Confiscation;

Article 48 (1) 1 of the Criminal Act

(In this case, the donation that constitutes a bribe for the crime of bribery against a third party is attributed to the beneficiary foundation, a third party, and thus, confiscation and collection should not be made in accordance with Article 134 of the Criminal Code.

1. The summary of the facts charged as to the violation of the Livestock Industry Cooperatives Act against Defendant 1 and 3 falls under the case of violation of the judgment of the court below. The executives or executive officers of the Livestock Industry Cooperatives Federation in collusion with Nonindicted 4, who are regular directors of the Livestock Industry Cooperatives Federation, shall not use funds for purposes other than livestock industry consultation purposes on July 30, 199, five daily newspapers such as Joseon Day, and three experts such as agro-fishery livestock farms, and low classism is not known. The aggregate amount of 49 times from July 9, 199 to April 200, 300, 41 times in full, 953,807,80, 500 won in total, 931,400,000 won in aggregate with expenses for integrated public relations activities, 305,000 won in aggregate with expenses for integrated public relations activities, 305,000 won in aggregate with expenses for integrated public relations activities, 405,000 won in aggregate, 1360 and opposition to the total expenses for 305.

2. The summary of the facts charged regarding Defendant 1’s obstruction of business or obstruction of business affairs is as follows: “Defendant 1, 2, against the Government’s reform and integration of cooperatives in the course of full-scale implementation of the work for the 10-time cooperation; Defendant 2, 4, 2, and employees of the 10-time National Assembly Federation at the 10-time conference conference and the 10-time conference; Defendant 2, 3, 4, 4, 100 employees of the 10-time National Agricultural Cooperative Federation at the 10-time conference and the 10-time conference; Defendant 2, 4, 100 employees of the 2, 10-time conference and the 10-time National Assembly Chairperson of the 10-Gu National Assembly Chairperson of the 10-Gu National Assembly Chairperson of the 10-Gu National Assembly Chairperson, who is an employee of the 10-Gu National Assembly Chairperson of the 20-Gu National Assembly Chairperson, conspired with 100 employees of the 21-Gu Chairperson.

The summary of the facts charged as to the defamation of Defendant 3’s publication is as follows: “Defendant 3, in collusion with Defendant 1 and Nonindicted 4, who is the regular director of the National Livestock Cooperative Federation, opposed to the Government’s reform and integration of cooperatives in the course of full-time implementation of the government’s cooperative reform work; (1) to slander the Minister of Agriculture and Forestry on January 12, 200, the Minister of Agriculture and Forestry recommended (name omitted); (2) the Minister of Agriculture and Forestry to import and decline; and (3) the Minister of Agriculture and Forestry on January 12, 200, the Ministry of Agriculture and Forestry published a false advertisement to the effect that agricultural chemicals, fertilizers, feed, etc. may be supplied at a price lower than half the level; and (2) on May 24, 2000, the Ministry of Agriculture and Forestry dismissed such false advertisement with the Minister of Agriculture and Forestry’s false statement that “The Minister of Agriculture and Forestry’s name was disprovokinged (name omitted) by publicly pointing out the following facts.”

Judges Shin Young-chul (Presiding Judge)