[1] The meaning of "a secret known to him in the course of performing his duties" under Article 50 (1) of the Anti-Corruption Act

[2] Whether a road construction plan and a specific route plan implemented by the State or a local government constitute confidential information under Article 50(1) of the Anti-Corruption Act (affirmative)

[3] The establishment period of a crime of violation of Article 50(1) of the Prevention of Corruption Act in a case where a public official purchased goods with confidential information that he/she became aware of in the course of performing his/her duties and obtains profits from resale after disposing of goods with a rise in market price

[4] The case holding that a violation of the Anti-Corruption Act by an act of acquiring property is not an error of law that affected the conclusion of the judgment by applying the ratio of the violation of the Anti-Corruption Act by an act of acquiring property benefits equivalent to the proceeds from resale to the violation of the Anti-

[5] Whether the principle of prohibition of disadvantageous alteration under Article 368 of the Criminal Procedure Act applies to the collection of penalty (affirmative)

[6] In a case where a person, without a farmer’s intention, submits a false agricultural management plan and obtains permission for a land transaction contract, whether it constitutes a case where the permission was obtained by “a deceitful or other unlawful means” under Article 31-2(1) of the former Act on the Utilization and Management of

[1] The term "confidentials known during the course of performing duties" under Article 50 (1) of the Anti-Corruption Act includes not only matters defined as confidential or classified as confidential under the law, but also matters of considerable interest that are not known to the public from an objective and general point of view by the government, public offices, or citizens, as well as matters classified as confidential or classified as confidential under the law.

[2] Since a road construction plan promoted by the State or a local government may cause complex problems in the process of consultation or compensation for the purchase of a site by causing a rise in the land price increase if it is known in advance, from the standpoint of a public office promoting the construction of a road, there is considerable benefit in not being known to the outside. Even if a road construction plan was disclosed to the outside, if a specific route plan is not yet known to the outside, the specific route plan is a significant difference in the interests of the owners depending on whether a certain piece of land is included in or adjacent to the road site, and the compensation and actual construction work are considerably affected, and thus, the road construction plan and a specific route plan constitute a secret under Article 50 (1) of the Prevention of Corruption Act, unless there are special circumstances, from the position of a public office promoting the construction of a road are disclosed to the general public.

[3] Article 50(1) of the Act on the Prevention of Corruption punishs a public official to acquire "receives" or "property interests" by using confidential information that he/she became aware of in the course of performing his/her duties. Since major information about the objective value of a certain object was referred to confidential information and has not been disclosed, if the market price is formed lower than the actual value of property without reflecting the above information, if a public official who became aware of the information in the course of performing his/her duties purchases the goods at a low price using such opportunity, then the act of acquiring the goods by using confidential information that he/she became aware of in the course of performing his/her duties is the act of acquiring the goods at a lower price than the actual value of property, and then, the act of acquiring the goods at a lower price, which is the act of acquiring the goods by using confidential information that he/she became aware of in the course of performing his/her duties, and later, it does not constitute a crime of acquiring the profits arising from the above crime.

[4] The case holding that the court below erred in holding that since the crime of acquiring property and acquiring pecuniary profits using confidential information that public officials came to know in the course of performing their duties is identical to the nature of the crime and the punishment are stipulated in the same article, it does not affect the conclusion of the judgment of the court below on the grounds that the court below's above error does not affect the conclusion of the judgment

[5] The principle of prohibition of disadvantageous alteration under Article 368 of the Criminal Procedure Act applies to an additional collection as a substitute for confiscation, which should be evaluated as equivalent to the punishment of confiscation.

[6] Purchasing farmland within a land transaction permission zone for the purpose of resale for profit-making in a short period of time without actually intent to engage in farming. In applying for permission for a land transaction contract, submitting a false agricultural management plan as if he/she would engage in agriculture using the land, and obtaining permission for a land transaction contract from a public official in charge of know-how constitutes a case where the permission was obtained by "private or other unlawful means" as stipulated in Article 31-2 (1) of the former Act on the Utilization and Management of the National Land (repealed by Article 2 of the Addenda to the National Land Planning and Utilization Act, Act No. 6655 of February 4, 2002).

[1] Article 50 (1) of the Anti-Corruption Act / [2] Article 50 (1) of the Anti-Corruption Act / [3] Article 50 (1) of the Anti-Corruption Act / [4] Article 50 (1) of the Anti-Corruption Act / [5] Article 368 of the Criminal Procedure Act, Article 50 (3) of the Anti-Corruption Act / [6] Article 31-2 (1) of the former Act on the Utilization and Management of the National Land (Act No. 6655, Feb. 4, 2002; see Article 141 subparagraph 6 of the current National Land Planning and Utilization Act)

[1] Supreme Court Decision 2002Do7339 decided Dec. 26, 2003 (Gong2004Sang, 291) / [4] Supreme Court Decision 89Do1083 decided Mar. 27, 1990 (Gong1990, 1015), Supreme Court Decision 2003Do8095 decided May 26, 2006 / [5] Supreme Court Decision 4294Do572 decided Nov. 9, 196 (No. 9, 183), Supreme Court Decision 82Do256 decided Apr. 13, 1982 (Gong1982, 547)

Defendant

Defendant

Attorney Ahn Yong-soo et al.

Suwon District Court Decision 2005No2753 Decided June 29, 2006

The appeal shall be dismissed. 118 days out of the number of detention days after the appeal shall be included in the original sentence.

We examine the grounds of appeal.

1. As to the violation of the Anti-Corruption Act

A. As to the assertion of misapprehension of legal principle

The term "confidentials known during the course of performing duties" in Article 50 (1) of the Anti-Corruption Act shall be interpreted to include not only the matters defined as confidential or classified as confidential under the law, but also the matters of considerable interest that are not known to the public from an objective and general point of view by the government, public offices, or citizens, as well as those matters classified as confidential or classified as confidential under the law.

Since a road construction plan promoted by the State or a local government may cause complex problems in the process of consultation or compensation for purchasing a site by causing the land price increase if it is known in advance, it is considerably beneficial to the public office promoting the construction of a road. Even if the road construction plan was disclosed to the outside, if the specific route plan is not yet known to the outside, the specific route plan is a secret as provided in Article 50 (1) of the Anti-Corruption Act, because the interests of the owners depending on which land is included or adjacent to the site, and the compensation and actual construction work are considerably affected by a significant impact on the owner’s interest. Thus, the road construction plan and the specific route plan constitute a secret as provided in Article 50 (1) of the Anti-Corruption Act, unless special circumstances exist, until the road construction plan are disclosed to the general public.

Therefore, the court below is just in holding that the use of the road construction plan and its detailed route plan that has been known to the defendant while performing his/her duties constitutes an act of using confidential information under Article 50 (1) of the Anti-Corruption and Prevention of Corruption Act. It did not err by misapprehending the legal principles on the concept of confidential information under Article 50 (1) of the Anti-Corruption and Prevention of Corruption Act, as alleged in the ground of appeal.

B. As to the assertion of mistake of fact

According to the evidence duly adopted and examined by the court below, the defendant was engaged in construction and business meetings which had been reported on the construction of the road of this case as a book of 200 billion won. In the absence of a director, "request for the construction of the road" and "comprehensive report on the construction of the road" related to the construction of the road of this case had been made several times since the date of the construction of the road of this case and the specific contents of the road. The construction plan of this case was made known to the residents of this case through the current status survey from the second half of 2001 and the civil petition conference, but its detailed route plan was made public on February 21, 2002, and the defendant purchased the road of this case 200 billion won after purchasing the road of this case from non-indicted 1, which had been purchased at the time of the immediately preceding purchase of the land of this case. The defendant was also entitled to 200 billion won more than that of the road of this case, and the construction permit of this case was purchased at the time of 200 billion won.

C. Ex officio determination

In citing the judgment of the court of first instance, the court below recognized the fact that “the defendant purchased the land in this case after selling it, and acquired financial benefits by using confidential information known to the public official in the course of performing his duties by raising gains from resale of KRW 1.2 billion,” and determined that the defendant’s act of taking property benefits equivalent to the above resale gains constitutes the criminal act in this case.

However, Article 50(1) of the Act on the Prevention of Corruption punishs a public official to acquire "receives" or "property interests" by using confidential information that he/she became aware of in the course of performing his/her duties. Since major information about the objective value of a certain thing was referred to confidential information and was not disclosed to the public, if the market price is lower than the real value of the property without reflecting the above information, if a public official who became aware of the information in the course of performing his/her duties purchases the goods at a low price by using such opportunity, then the act is the "acquisition of the goods by using confidential information that he/she became aware of in the course of performing his/her duties" under the above provision of the Act, and then constitutes a crime under the above provision of the Act at the time of purchasing the goods, and later, it does not constitute a crime of acquiring "property interests" under the above provision of the Act.

In this case, as determined by the court below, if the defendant, who became aware of the fact that a new road is to be constructed near the land in this case due to his business process, purchased the land at a low market price due to the lack of information, the crime of acquiring the "re-owned property" under the above Article of the Act was established at that time. The crime of acquiring the "re-owned property" equivalent to 1.2 billion won after the resale of the land in this case is not established, unless the defendant acquired the profits from resale equivalent to the "property profits" equivalent to the resale profits.

Therefore, the judgment of the court below is erroneous in holding that the defendant's act of acquiring the property of this case is not a violation of the Act on Prevention of Corruption by the act of acquiring the property of this case, but a violation of the Act on Prevention of Corruption by the act of acquiring the property of this case. However, the crime of acquiring the property and the crime of acquiring the property profits by using the secret acquired by the public official in the course of performing his duties is a crime punishing the act of acquiring the property through the use of secret in the course of performing his duties in order to prevent corruption and to establish the clean public office and social climate as well as to prevent the occurrence of corruption, and to establish the crime of acquiring the property through the use of secret in the course of his duties, and the punishment does not affect the result of the judgment. Thus, the judgment of the court below is not a ground to reverse the judgment of the court below (see Supreme Court Decisions 89Do1083, Mar. 27, 190; 200Do8395, May 26, 2006).

D. As to the amount of the additional collection

According to the reasoning of the judgment below, the court below found the defendant guilty of acquiring property benefits by using confidential information known to the defendant in the course of performing its duties by raising gains from resale of KRW 1.2 billion, but found the amount to be collected, the defendant acquired the land of this case by using confidential information about the establishment of the road of this case. Although such benefits are not yet realized at the time of the defendant's acquisition of the land of this case, the defendant's appraisal report (the appraisal report of this case shall be KRW 8,950,000,000, KRW 4.7 billion,000,000,000,000,000,000,000 won, which is more than KRW 4.7 billion,000,000,000,000,000,000 won, which is more than KRW 1.77 billion,000,000,000,000,000,000.

As a ground of appeal, the Defendant asserts that, since the collection under the Anti-Corruption Act is limited to the benefits that the Defendant obtained by using the secrets concerning the construction of roads, the lower court erred by misapprehending the legal doctrine on the calculation of the amount of the amount of the additional collection, even though it should be deducted from the amount of the additional collection due to changes in the land use, which is the added value of the land developed by the Defendant, such as the construction of access roads and the construction permission.

However, in the instant case, as seen earlier, the Defendant’s criminal act did not intend to acquire pecuniary benefits equivalent to the proceeds from the resale of the instant land, but rather acquired the instant land, which is a property, pursuant to Article 50(3) of the Anti-Corruption Act, the land itself should be subject to confiscation. Since the Defendant already disposed of it and thus it is impossible to confiscate it, the amount equivalent to the value should be additionally collected. Therefore, on the ground that the Defendant’s criminal act of this case was deemed to have acquired “property benefits” due to the increase in land price, and that the Defendant’s criminal act of this case was subject to additional collection, and the lower court, which made the subject of additional collection, erred by misapprehending the legal doctrine of

However, the amount equivalent to the value of the land of this case to be collected from the defendant is obvious that it exceeds KRW 738,570,000,000 which the court below ordered additional collection in light of the price of the resale thereof, and the additional collection is a substitute disposition for confiscation and shall be evaluated in accordance with the same manner as the confiscation is the same as the confiscation. Therefore, the principle of prohibition of disadvantageous alteration under Article 368 of the Criminal Procedure Act applies to this case, so long as the amount of additional collection cannot be changed to the disadvantage of the defendant more unfavorable than the original judgment, the above error of the court below is not the ground for reversal of the original judgment, and it is therefore maintained

2. As to the violation of the former Act on the Utilization and Management of the National Territory (amended by Act No. 6655 of Feb. 4, 2002; hereinafter the same)

Article 31-2 (1) of the former Act on the Utilization and Management of the National Territory provides that a person who enters into a land transaction contract or obtains permission for a land transaction contract by deceit or other wrongful means shall be punished without permission. The purchase of farmland within the land transaction permission zone is merely for the purpose of resale for profit-making in a short term, without any intention to engage in farming. In the case of applying for permission for a land transaction contract, submission of a false agricultural management plan to a public official in charge of the transaction contract who is unaware of the fact that he/she will engage in agriculture by using the land shall be deemed to fall under a case where permission for

In full view of the circumstances leading up to the acquisition of the land of this case by the defendant and the fact that the defendant resells the land without farming for a period of one year and seven months owned by the defendant, the defendant merely purchased the land of this case for an speculative purpose to obtain a long-term resale profit, and submitted a false agricultural management plan without the intention of farming, and thereby obtained permission for a land transaction contract by fraudulent or other illegal means is sufficient. Thus, the court below's decision to the same purport is just and there is no error of law such as misunderstanding of legal principles as to the old Act on the Utilization and Management of the National Territory or misunderstanding of facts against the rules of evidence, as otherwise alleged in the ground of appeal

3. Conclusion

Therefore, the defendant's appeal is dismissed, and part of the detention days after the appeal is included in the original sentence. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Jeon Soo-ahn (Presiding Justice)