A violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (Bribery)

1. A;

2. B

Defendants and Prosecutor (Defendant B)

Demotion (prosecution) and open trial.

Attorney AI, AJ (for the defendant A)

AK Law Firm, Attorneys AL (for Defendant A)

AM Law Firm, Attorneys Lee Dong-soo (Defendant B)

Law Firm AO, Attorney AP (Defendant B)

Busan District Court Decision 2014Gohap618 Decided February 13, 2015

August 27, 2015

All appeals by the Defendants and the Prosecutor against Defendant B are dismissed.

1. Summary of grounds for appeal;

A. Defendant A

1) misunderstanding of facts or misapprehension of legal principles

A) The 'the selection of a subcontractor for landscaping project' as stated in the facts charged of the instant case where the Defendant received a bribe in return for its good offices is the business of a corporation (hereinafter referred to as '0') which is a contractor. However, the court's permission was required to select a subcontractor for landscaping project since rehabilitation procedures are in progress, so the 0th selection of a subcontractor for landscaping project is not related to the duties of the Defendant, the head of the partnership.

B) The Defendant would request M to be selected as a subcontractor upon knowing that M Co., Ltd. (hereinafter referred to as “M”) will not be designated as a contractor for landscaping construction works. Since the Defendant deceiving C and defrauded money and valuables from C, then the Defendant should be punished by fraud, not by the violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (Bribery) but by fraud.

C) A crime that receives KRW 50 million from C on November 18, 201, and a crime that receives KRW 50 million on June 5, 2012 is not recognized as a single crime, but cannot be assessed as a single comprehensive crime as another separate act.

D) Nevertheless, the court below found the defendant guilty on the charges of violating the Act on the Punishment, etc. of Specific Crimes (Bribery). The court below erred by misapprehending the legal principles on the job relationship and the number of crimes in bribery, which affected the conclusion of the judgment.

2) Unreasonable sentencing

In light of the various sentencing conditions of the instant case, the sentence imposed by the lower court on the Defendant (the penalty of KRW 15 million for imprisonment with prison labor and fines of KRW 15 million for KRW 65 million) is too unreasonable.

B. Defendant B

1) misunderstanding of facts or misunderstanding of legal principles (related to the guilty portion in the original judgment)

A) As indicated in this part of the facts charged, the Defendant conspired with A to receive KRW 50 million from A around November 18, 201, and there was no fact that the Defendant, as indicated in this part of the facts charged, provided that A would receive KRW 50 million from A, and provided that only the role of delivering intention between A and C is in charge, and the Defendant has functional control over the Defendant as a co-principal. It is difficult to view that the Defendant’s act is difficult, and it is merely

In addition, the defendant's act of receiving money from C for the purpose of collecting his claim against A, or delivering money and valuables received from C to A is merely a mere fact that the defendant's act of violating the Attorney-at-Law Act, taking good offices under the Act on the Aggravated Punishment, etc. of Specific Crimes, acquiring third-party brain water, etc. cannot be punished as a co-principal of the violation of the Act on the Aggravated Punishment, etc.

B) The Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (hereinafter “Urban Improvement Act”) or the Framework Act on the Construction Industry (Articles 84-2 and 11(5) are also applicable to the act of an executive officer of the redevelopment association receiving money, valuables, entertainment or other property benefits in relation to the selection of a construction project.

A The status of a public official deemed under Article 84 of the Act on the Maintenance and Improvement of Urban Areas as the head of the redevelopment partnership.

As a result, in relation to the act of receiving money and valuables in this case, the punishment is imposed for the violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (Bribery) more severe than that of the said Act or the violation of this Act. This constitutes "where the degree of punishment is serious due to the status relationship" under the proviso of Article 33 of the Criminal Act, and thus, the defendant, who is not an officer of the redevelopment association, is not subject to the legal fiction of a public official, should not be punished for the violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (Bribery) more severe punishment pursuant to the proviso

C) Nevertheless, the lower court, without considering the proviso to Article 33 of the Criminal Act, recognized the Defendant as a joint principal offender for the crime of violating the Act on the Aggravated Punishment, etc. of Specific Crimes (Bribery), and punished the Defendant more severe punishment than the punishment prescribed for the crime of violating the Act on the Aggravated Punishment, etc. of Specific Crimes (Bribery) without considering the proviso to Article 33 of the Criminal Act. In so doing, the lower court erred by misapprehending the legal doctrine on the accomplice and status under the proviso to

2) Unreasonable sentencing

In light of the various sentencing conditions of the instant case, the sentence imposed by the lower court on the Defendant (the penalty of KRW 50 million shall be additionally collected in the amount of KRW 40 million) is too unreasonable. The prosecutor (the Defendant B) is too unreasonable.

1) misunderstanding of facts (related to the acquittal portion in the original judgment)

In full view of the following facts: A’s consistent statement to the effect that “A, a money donor, negotiates for the good offices for landscaping projects with C, a person who presents a specific amount, is not A, a person who receives the good offices for landscaping projects, and a defendant receives 70 million won or more from A who receives the good offices from landscaping enterprises, and the defendant received money from C to pay a debt; and that “the defendant received 50 million won or more from C and gave 30 million won out of the money to the defendant.” On November 18, 2011, the court below found the defendant guilty; and C’s statement to the effect that “after the first bribery, the defendant asks for cooperation to the president of the Association (A)” after receiving the good offices, the fact that the defendant received the bribe additionally from C on June 5, 2012 can be sufficiently recognized.

Nevertheless, the court below found the defendant not guilty of this part of the charges on the grounds that the evidence submitted by the prosecutor alone on June 5, 2012 was insufficient to view that the defendant conspireds in advance with respect to KRW 50 million received by A on June 5, 2012, and that there is no other evidence to acknowledge it. The court below erred by misunderstanding the facts, which affected the conclusion of the judgment.

2) Unreasonable sentencing

In light of the various sentencing conditions in this case, the above sentence imposed by the court below on the defendant is too uneasible and unfair.

2. Determination

A. Judgment on the mistake of facts or misapprehension of legal principles by Defendant A

1) As to the assertion that no duty relationship exists

A) The judgment of the court below

The defendant argued to the purport that this part of the appeal is alleged in the ground of appeal, and the court below rejected the defendant's argument on the ground that the defendant's duty as the head of the association is very closely related to the selection of the landscaping subcontractor as the contractor, and further, it is reasonable to view that the defendant's duty constitutes a job act that may substantially affect the process of selecting the subcontractor. In light of the contents of the contract for the construction works of the Housing Redevelopment Project, the relationship between K Housing Redevelopment Project Association (hereinafter "the cooperative of this case") and 0 as the contractor, and the role and authority of the head of the association in the Housing Redevelopment Project.

B) The judgment of this Court

(1) Legal principles

The term "duty" in Article 129 of the Criminal Act includes not only the duty under the control of law, but also the act closely related to the duty under the jurisdiction of the public official, or the act of assisting or influencing the decision-making authority (see, e.g., Supreme Court Decision 2010Do10910, Dec. 23, 2010). On the other hand, the crime of acceptance of bribe is established when the number of money of the public official's duties and money is in a quid pro quo relationship, but also the act of assisting or influencing the decision-making authority (see, e.g., Supreme Court Decision 2010Do10910, Dec. 23, 2010). Such legal principle also applies to the redevelopment and consolidation project association's officers deemed public officials under Article 84 of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (see, e.g., Supreme Court Decision 2014Do13584, Dec. 14, 2015).

(2) Specific determination

The above legal principles and circumstances revealed by the court below are as follows. ① from May 2006 to the head of the association of this case, the defendant was in a position to represent the association and to administer the affairs of the association. ② Even if the authority to select landscaping companies related to housing redevelopment projects exists 0, the head of the association shall represent the association, exercise overall control over the affairs of the association such as the selection of the contractor, and have a close cooperative relationship with the contractor. ③ The association of this case has the right to supervise the progress of the construction project and the right to order correction in relation to housing redevelopment projects, so it is possible to conflict with the interests of the association with the contractor. ④ The defendant was in charge of the construction project of this case before and after the association of this case, and it appears that there was no realistic need to maintain the relationship with the association of this case, which is the implementer of the construction project. ④ The defendant was in charge of the construction project of this case before and after the association of this case, and it appears that the defendant was in charge of the construction project of this case's giving and receiving money from the association of this case 20.

Therefore, the defendant's ground of appeal on this part is without merit.

2) As to the assertion that fraud should be constituted:

살피건대, 원심이 적법하게 채택하여 조사한 증거들에 의하여 인정되는 다음과 같은 사정들 즉, ① 피고인은 이 사건 조합의 조합장으로서 하도급업체 선정과 관련하여 시공사에 영향력을 행사할 수 있는 우월적 지위에 있었던 점, ② 피고인은 C으로부터 돈을 수수한 이후 실제로 0 담당자에게 M을 조경공사 하도급업체로 추천한 사실도 있는 점, ③ C은 원심 법정에서 피고인에게 추가로 500만 원을 공여할 당시 (법정관리 가) 풀리면 일사천리로 계약도 될 것이고, 또 뒤에 시설물 공사 다하고 내가 여러 가지 편의를 봐주겠다는 의미로 돈을 건넸다(피고인이 법정관리가 풀리면 계약도 될 것이고, 시설물 공사 등 여러 편의를 봐주겠다고 말하여 그 대가로 500만 원을 건넨 것이라는 취지)'라고 진술한 점, ④ 0 영남지사 직원인 U은 수사기관에서 '2013. 4. 내지 5.경 피고인으로부터 M이 조경공사 하도급업체로 선정되도록 해달라는 요청을 받았다.', '피고인이 추천한 M은 본사 외주팀에서 심사한 결과 신생업체이고, 시공능력 한도가 약 7억 원 정도였으며, 단종 전문건설협회에서 평가 발행하는 신용등급이 "C"등급(회사의 선정 기준은 "B플러스")인 등 위 3가지 요소가 미달되어 협력업체로 선정되지 않았다.'고 진술한 점 등을 종합하여 보면, 이 사건 뇌물수수 당시 피고인이 0에 M을 조경공사 하도급업체로 알선하려는 의사를 가지고 있었던 것으로 봄이 상당한바, 피고인이 사실상 M이 하도급업체로 선정되지 않을 것이라는 점을 알면서도 에 M이 하도급업체로 선정되도록 부탁해주겠다고 C을 기망하여 금품을 편취한 것으로 보기는 어렵다.

Therefore, the defendant's ground for appeal on this part is without merit.

3) As to the assertion that an inclusive crime is not a single crime

A) The judgment of the court below

The defendant argued to the purport that this part of the grounds for appeal was alleged in the court below, and the court below accepted 50 million won from C to C to 105 million won on the ground that each of the above 50 million won was the same for the selection of a landscaping subcontractor. Although C was not provided in advance, although it was not provided in advance, it was thought that the above 50 million won was a part of the total honorarium, and the defendant stated to the purport that it would have been paid more than 50 million won at the defendant's request during the last subcontract, the court below rejected the defendant's assertion that the defendant received 50 million won from C to 105 million won on the ground that it is reasonable to view that the above 50 million won was received from a single and continuous criminal suspect, and that it was a violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (the Act on the Aggravated Punishment, etc. of Specific Crimes).

B) The judgment of this Court

(1) Legal principles

In general, where there are several acts of bribery, the number of the crimes of bribery does not always constitute a single comprehensive crime, but should be subject to evaluation of individual and overall nature of each act (see, e.g., Supreme Court Decision 85Do740, Jul. 9, 1985). Therefore, in determining the number of the crimes of bribery, the most important factor is whether the criminal is a single and identical, i.e., whether a single one is a single duty, and the time closeness and recovery, etc. should be comprehensively assessed on the basis of secondary criteria. When receiving money, there is an express solicitation in other names. When receiving money, or when receiving money for other acts of bribery, it shall be deemed that there are substantive concurrent crimes (see, e.g., Supreme Court Decisions 97Do2836, Feb. 10, 1998; 2002Do399, May 14, 2002).

(2) Specific determination

In light of the above legal principles and the circumstances duly explained by the court below, and the following circumstances acknowledged by the evidence duly adopted and examined by the court below, i.e., ① each of the 50 million won received from C is to arrange M to be selected as a landscaped construction subcontractor from C, ② it is difficult to deem that there was an explicit solicitation in any other name when the defendant receives two-lanes money from C, and ③ the act of acceptance of bribe by the defendant, the head of the association of this case, infringes upon the selection of the subcontractor of the association, the process of management and operation of the association, and the trust thereof, it is reasonable to view that each of the acceptance of bribe of this case by the defendant was made as a single and identical consideration for the same act of duties as the designated subcontractor of the landscaped construction project. Thus, the fact-finding and judgment of the court below are justified, and there is no error in the misapprehension of legal principles as to the mistake of facts or the number of bribery as pointed out by the defendant, which affected the conclusion of the judgment.

Therefore, the defendant's ground for appeal on this part is without merit.

B. Judgment on the mistake of facts or misapprehension of legal principles by Defendant B

1) As to the assertion that the crime of violating the Act on the Aggravated Punishment, etc. of Specific Crimes does not constitute a joint principal offense

A) The judgment of the court below

The court below also argued to the purport that the defendant's act was merely a aiding and abetting crime, not a joint principal offender, and the court below decided to the effect that the defendant's act was merely a aiding and abetting crime. Accordingly, the court below rejected the defendant's argument on the ground that the defendant's act was a joint principal offender of the violation of the Act on the Aggravated Punishment, etc. of Specific Crimes, since it can be recognized that functional control over the defendant's act based on the intention of joint processing can be recognized in light of the defendant's behavior patterns and the degree of participation in the loan certificate, and recognized the defendant as a joint principal offender of the violation of the Act on the Aggravated Punishment, etc. of Specific Crimes.

B) Determination

(1) Legal principles

The co-principal under Article 30 of the Criminal Act is established by satisfying the subjective and objective requirements, such as the implementation of a crime through the functional control of a crime by the intent of co-processing and the intent of co-processing. As such, a person who did not directly share and implement the elements of a crime among the conspiracy may be held liable for the so-called crime as a co-principal depending on whether the elements of a crime are met. Meanwhile, in order to be recognized as a co-principal by a conspiracy who did not directly share and implement the elements of a crime as a co-principal, taking into account his/her position and role in the whole crime, control over the progress of the crime, and power over the process of the crime, etc., and rather, it should be recognized that a functional control exists through an essential contribution to the crime (see, e.g., Supreme Court Decision 2010Do3544, Jul.

(2) Specific determination

In light of the above legal principles and the circumstances properly explained by the court below, i.e., the following circumstances acknowledged by the evidence duly adopted and investigated by the court below, i.e., W made a statement to the effect that "the defendant was the head of the association of W and C" as his office, and that "A was not aware of C before it, but I would first suggest that A receive bribe in relation to the duties of the head of the association in light of the defendant's good offices C and W, and there was no way to suggest that the defendant would receive bribe in relation to the duties of the head of the association, ii) as well as that the defendant would not have been aware of the fact that there was a violation of the Attorney-at-Law Act, and that the defendant would not have been aware of the fact that the amount of acceptance of bribe was 50 million won or more (30 million won - 150 million won ? 50 million won or more) and that the defendant would not have been able to receive money and valuables directly among the defendant's offices."

2) As to the argument that the proviso of Article 33 of the Criminal Act shall apply to the defendant

First of all, the Act on the Aggravated Punishment, etc. of Specific Crimes (Bribery) and the Act on the Aggravated Punishment, etc. of Specific Crimes and the purpose of legislation are different crimes in relation to the violation of Article 95-2, Article 38-2 of the Framework Act on the Construction Industry (Article 95-2, Article 38-2 of the Framework Act on the Aggravated Punishment, etc. of Specific Crimes and the Act on the Aggravated Punishment, etc. of Specific Crimes and the Act on the Aggravated Punishment, etc. of Specific Crimes and the Act on the Aggravated Punishment, etc. of Specific Crimes are different crimes. Even if the facts of each of the above crimes overlap, there is only room for the commercial concurrent crimes to be established within the extent of such crimes. Further, the proviso of Article 33 of the Criminal Act on the Aggravated Punishment, etc. of Specific Crimes, which punishs the act of receiving money or valuables (Article 84-2, Article 11(5) of the Act on the Aggravated Punishment, etc. of Specific Crimes). In other words, even if there is no possibility for the punishment to be more mitigated or mitigated of "an accomplice's."

Therefore, under different premise, the defendant's argument that the proviso of Article 33 of the Criminal Code is applicable is without merit.

C. Judgment on the prosecutor's assertion of mistake of facts (related to the acquittal part against the defendant B)

1) Summary of this part of the facts charged

On June 5, 2012, in collusion with C, Defendant B received a bribe in relation to the duties of the head of the redevelopment and maintenance project association deemed as a public official after receiving KRW 50 million under the same name in the motor vehicle of C parked on the adjacent road in the Seocheon-gu Busan Northerndong, Busan, in return for the referral of a subcontractor for landscaping construction works. 2) The judgment of the court below

The lower court acquitted the Defendant of this part of the facts charged on the ground that the evidence submitted by the prosecutor alone was insufficient to deem that the Defendant conspireds in advance with respect to KRW 50 million received by A on June 5, 2012, and that there is no other evidence to acknowledge it. The summary of the lower judgment’s decision is as follows.

The summary of the judgment of the court below - (1) alleged that the defendant demanded him to receive money from C to repay the remainder of his obligation, and that "A will be allowed to talk about the degree of KRW 50 million because he had been holding a house with C," but C stated that there was no contact with the defendant before June 5, 2012.

C After granting KRW 50,00,000 per one-lane, C confirmed the progress of the landscaping work with the Defendant and W at one-half month. On June 3, 2012, A and B did not sit together with the field manager X of a stock company of KRW 0,00,000. In addition, even though the Defendant received KRW 50,000 from his/her office, he/she performed an active role, such as adjusting the specific amount between A and C, and signing the certificate of borrowing KRW 50,000 as a observer, there is no fact that he/she took part in contact with C or receiving money. ③ Although the time of receiving KRW 50,000,000 from two-lane and KRW 7 months, the time of receiving KRW 50,000 to one-lane and KRW 50,000,000,00,000 to one-lane and two-lane, the Defendant’s act of receiving money from A and two-lanes as a separate criminal offense is no more than the aforesaid charges.

3) The judgment of this Court

In a thorough review of the above judgment of the court below by comparing it with the records, the above fact-finding and judgment of the court below are just and acceptable, and there is no violation of law by mistake of facts as alleged by the prosecutor, which affected the conclusion of the judgment.

Therefore, this part of the prosecutor's ground of appeal disputing mistake of facts is without merit.

D. The Defendant A, the president of the Housing Redevelopment Project Association, in collusion with Defendant B, who is the head of the partnership, received a large amount of bribe from the representative of the landscaping company that intends to obtain a subcontract for the landscape architecture construction project. Since the head of the partnership has various authority, such as the nature of the crime and criminal facts, and the head of the partnership has a large amount of business funds in the future, there is a high risk of corruption due to the flexibleness between the partnership head and the construction company. As such, it is highly likely that the damage of the partnership and the members directly connected to the improvement project under the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents and Dwelling Conditions for Residents, such as an increase in the construction cost and non-equal contract, which are related to the improvement project under the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents, and there is a great need to secure transparency and fairness in the improvement project and public nature. The Defendants’ criminal act in this case seriously damaged the fairness and integrity of the partnership head’s execution of the construction project and trust of the general public, Defendant A is a large amount of KRW 500,0,00.

On the other hand, M is not selected as a subcontractor for landscaping construction, there is no criminal history of the same kind for the Defendants, all the Defendants are aged 69 years old, Defendant B is not a public official, Defendant A is deemed a public official under the law, not a public official, and Defendant B is not in a position deemed a public official.

The fact that there is a difference in the nature of the crime against the bribe crime is favorable to the defendants.

As above, considering the following factors: (a) whether the Defendants were disadvantageous or favorable sentencing factors; (b) the Defendants’ character and behavior and environment; (c) family relationship; (d) motive and background of the commission of the crime; (c) the Defendants’ status at the time of the commission of the crime; and (d) various sentencing conditions specified in the records and arguments, such as the records and arguments in the instant case; and (d) the lower limit of the sentencing guidelines set out in the sentencing guidelines (in the case of Defendants A: 9-12 years of imprisonment; and (e) Defendant B: 6 years of imprisonment; and 8 years of imprisonment), the lower court appears to have sentenced each sentence equivalent to the lower limit of the punishment set in the sentencing guidelines; and (e) even if there were no special circumstances or changes in circumstances that make it possible for the lower court to change the punishment of the Defendants at the trial, it is not recognized that each sentence imposed on the Defendants was within the appropriate scope of punishment in accordance with the Defendants’ criminal liability; and (e) it is too unreasonable or unreasonable.

Therefore, the grounds of appeal against the Defendant B by the Defendants and the Prosecutor disputing each unfair sentencing are without merit.

3. Conclusion

Therefore, the appeal against the defendant B by the defendants is without merit, and all of the appeals are dismissed in accordance with Article 364 (4) of the Criminal Procedure Act.

The presiding judge, the number of judges;

Applicable Mutatis Mutandis to judge gambling

Judges Yellow Nature

1) Under the following, the name "defendant" is used only for the defendant who falls under any of the items, and the remainder of the defendants

full names are written only.