2012Gohap 1211 Violation of the Act on the Aggravated Punishment, etc. of Specific Crimes

1. A;

2. B

Jin-Jin ( Prosecution) and Jin-Jin (Public Trial)

A. (Korean War for Defendant A)

Attorney B-at-law (Korean War for Defendant B)

April 12, 2013

Defendant A shall be punished by imprisonment with prison labor for ten months and by imprisonment for three months and by imprisonment for three months for a crime set forth in the judgment of Defendant B.

However, with respect to Defendant A, the execution of the above sentence shall be suspended for two years from the date this judgment becomes final and conclusive.

35,000,000 won from Defendant A, and 30,000,00 won from Defendant B shall be collected respectively.

To order the Defendants to pay an amount equivalent to the above additional collection charges.

Criminal facts

[Defendant B’s criminal records]

(1) The defendant committed a crime against others on August 11, 2006 in collaboration with C, D, and E, and committed a crime against others.

2. On February 15, 2007, the above judgment became final and conclusive on the following grounds: (a) imprisonment with prison labor for a violation of the Punishment of Violences, etc. Act (joint conflict) in the Busan District Court’s branch court; and (b) imprisonment with prison labor for six months;

② On May 16, 2006, the Defendant committed a crime by deceiving money from others, and on December 12, 2008.

Busan District Court sentenced 2 years of suspended sentence to 6 months of imprisonment for fraud, which became final and conclusive on December 208.

③ On July 15, 2008, 16, 2008.

28. The Busan District Court sentenced the above A or D's imprisonment for four months, and the above D's imprisonment for four months for fraud. On February 18, 2011, the prosecutor and the defendant appealed, and the defendant reversed and sold the above A or C's fraud at the Busan District Court, and sentenced that the prosecutor and the defendant dismissed the appeal against the above D's above fraud. The defendant appealed against the above appellate court's judgment, but the Supreme Court decided that the defendant dismissed the appeal against the prosecutor and the defendant.

28. The appeal was dismissed.

④ On June 5, 2008, the Defendant committed a crime that receives money or goods in relation to the intermediation of matters falling under the duties of a public official, and on January 13, 2012, in the Busan District Court’s Dong Branch, the Defendant was sentenced to the suspended sentence of two years, community service work 120 hours, additional collection 10 million won, and the judgment on January 21, 2012, which became final and conclusive on June 13, 2012.

[Criminal Facts]

1. Violation of the Act on the Aggravated Punishment, etc. of Specific Crimes related to building permission;

Defendants, along with H and I, are F forest land 26,059 square meters in Busan-gun, Busan-gun (hereinafter “the instant forest”).

As a result of the gradient limitation stipulated in the Busan Metropolitan City Urban Planning Ordinance, Defendant A, with knowledge of the fact that the entire forest of this case cannot be permitted to construct the forest of this case, was purchased at the low price of the forest of this case, and then came to receive a large amount of profit by obtaining a construction permit on the forest of this case in solicitation from public officials of the plane management office with knowledge of the fact that it is difficult to obtain a construction permit on the whole forest of this case. Defendant A intended to perform the role of purchasing the forest of this case smoothly from G clan who is the owner of the forest of this case; H arbitrarily modifying the height line of the aerial surveying, etc. attached to the application for the construction permit, thereby arbitrarily manipulating the gradient of the forest of this case to lower the actual value of the forest; Defendant B, in solicitation of construction of the plane management office and public officials of the plane management office, made an implied construction permit; and I intended to perform the role of investing the design cost entering the construction permit or the public official

On June 1, 2008, the Defendants agreed to invest funds necessary to resell the instant forest after obtaining permission for construction from the J’s office located in the Busan District Office in Cheongdo-gu, Busan District, the captain of the vessel, upon the request of the public officials working for the office building of the captain of the vessel, would allow them to obtain a construction permit by resolving the gradient limitation problem. The Defendants received KRW 20 million from the K’s account in the name of K used by Defendant B on August 1, 2008, under the pretext of arranging matters concerning the construction permission of the instant forest. Then, the Defendants were transferred KRW 20 million to the said account on September 9, 2008.

As a result, the Defendants conspired to accept 40 million won in connection with the referral of matters belonging to public officials' duties.

2. Violation of the Act on the Aggravated Punishment, etc. of Specific Crimes concerning Permission for Alteration of Use;

The Defendants, H, and I obtained permission for the use of neighborhood living facilities in the instant forest on October 6, 2008 according to the role as described in paragraph (1). On December 19, 2009, under the condition that a house for electric source was newly built in the instant forest, the Defendants, H, and I sold L in the instant forest in the purchase price of KRW 4 billion on condition that the house for electric source was allowed. After applying for permission for the alteration of the purpose of use to a new house construction permit for neighborhood living facilities permitted in the instant forest in the building and the building of the captain’s office, but the alteration of the purpose of use was not permitted. Rather, the captain’s office did not cancel the existing building permit on the ground that the construction was not commenced within one year from the date of obtaining the building permit, and did not cancel the building permit at the request of the Busan viewing public official in a relationship related to the construction director of the captain’s office

Accordingly, Defendant B did not cancel the construction permit in solicitation to the public officials of Busan City and did not change the purpose of the existing permission, H prepared a design change application and accompanying documents and received them to the Gun office of the captain, and L would play an role in investing the design cost entered in obtaining permission for change of purpose of use or the public official’s school expenses.

A. Defendant A

On June 4, 2010, the Defendant: (a) changed the instant forest to the permission for new construction of neighborhood living facilities, which was granted on October 6, 2008, to L with respect to the instant forest, at the N Office of Operation of L in Busan, Busan, to the permission for new construction of neighborhood living facilities; and (b) ordered H to cancel the existing construction permission at the Gun Office of the captain; and (c) “H would attempt to look at the Gun Office of the captain’s Gun office with a public official.” (d) The Defendant changed the operating expenses, i.e., to the purport of “h,” and received KRW 5 million from L to the NA account in the name of H.

As a result, the defendant accepted 5 million won as to the referral of matters belonging to public officials' duties.

B. Defendants

On October 21, 2010, the Defendants were transferred KRW 20 million to the Defendant’s account at the N Office on October 21, 2010, to prevent the revocation of the existing permission for the construction of neighborhood living facilities by exercising influence on L through the Busan public official in a relationship closely related to the director of the building division of the Gun Office, and to change the said permission to the new house for the electric source.

Accordingly, in collusion with H, the Defendants received KRW 20 million in connection with the referral of matters belonging to public officials' duties.

Summary of Evidence

【Criminal Facts】

1. Defendants’ respective legal statements

1. Each prosecutor's interrogation protocol concerning H;

1. Each prosecutor's protocol of interrogation of Defendant A (p. 2 and 3) of each prosecutor's office's protocol of interrogation of Defendant A (p. 1. I and each prosecutor's office's protocol of interrogation of Defendant A;

1. Each investigation report (Report on the confirmation of the details of use of KRW 40 million, such as KRW 20 million transferred by K, and on the change of the form and quality (purpose) and the verification of the details of use of KRW 49 million);

【Prior Records of Judgment】

1. Criminal records (the 18th page of evidence records);

1. Investigation report (Attachment of the judgment of the case in connection with the suspected person B (reciding and taking in good offices), attachment of the judgment of the case in question, attachment of the judgment of the case in relation to the suspected person B), and attachment of the summary of the agreement in the case

Application of Statutes

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

A. Defendant A: Article 3 of the former Act on the Aggravated Punishment, etc. of Specific Crimes (amended by Act No. 10210, Mar. 31, 2010; hereinafter the same) and Article 30 of the Criminal Act (amended by Act No. 10210, Mar. 31, 2010; hereinafter the same shall apply); Article 3 (A) of the Act on the Aggravated Punishment, etc. of Specific Crimes (amended by Act No. 2-A; hereinafter the same shall apply); Article 3 of the Act on the Aggravated Punishment, etc. of Specific Crimes (amended by Act No. 1010, Mar. 31, 201; hereinafter

B. Defendant B: Article 3 of the former Act on the Aggravated Punishment, etc. of Specific Crimes, Article 30 of the Criminal Act (Article 1 (1) of the Act on the Aggravated Punishment, etc. of Specific Crimes, inclusive) and Article 3 of the Act on the Aggravated Punishment, etc. of Specific Crimes, Article 3 of the Act on the Aggravated Punishment, etc. of Specific Crimes, Article 30 of the Criminal Act

1. Handling concurrent crimes;

Defendant B: The record of the crime in violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (Acceptanced Materials) and the crime in violation of the former part of Article 37 and the former part of Article 39(1) of the Criminal Act (Article 39(1) of the Act on the Aggravated Punishment, etc. of Specific Crimes, and the record of the crime in violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (Article 37 and the record of the crime in violation of the Act on the Aggravated Punishment, etc. of Specific Crimes, which became final and conclusive on April 28, 2011).

Defendant A: the former part of Article 37, Articles 38(1)2 and 50 of the Criminal Act [Article 50 of the Act on the Aggravated Punishment, etc. of Specific Crimes (Article 1 of the Act on the Aggravated Punishment, etc. of Specific Crimes)]

1. Suspension of execution;

Defendant A: Article 62(1) of the Criminal Act (General Conditions favorable to Defendant A)

1. Additional collection:

Defendants: The latter part of Article 13 of the Act on the Aggravated Punishment, etc. of Specific Crimes

○ Defendant A: (60,00,000 won x 1/2) + 5,00,000 won = 35,000,000 won = Defendant B: 60,000,000 won x 1/2 x 30,000 won x 1/2 x 30,000 won.

1. Order of provisional payment;

Defendants: Reasons for sentencing under Article 334(1) of the Criminal Procedure Act

1. Defendant A

[Scope of Punishment] Imprisonment with prison labor for not more than seven years and six months;

[Determination of Sentence] 10 months of imprisonment with prison labor and 2 years of suspended sentence are given and received a total of 65 million won under the name of the Defendant to obtain a building permit, etc. belonging to the duties of a public official. Considering the fact that the fairness of the execution of public duties and the confidence in the purchase of the goods are damaged, and that the amount of the goods has not been returned without any small amount, it is necessary to punish with severe penalty corresponding thereto.

However, there is no history of criminal punishment for the same criminal act, the confession of all the crimes of this case, and the misunderstanding is divided and reflected, the defendant's health status is not good due to liveration, etc. under favorable circumstances, and the punishment shall be determined like the order, taking into account the age, character and conduct, family relationship, etc. of the defendant in the arguments of this case as well as various conditions of sentencing specified in the arguments of this case.

2. Defendant B

[Scope of Punishment] No. 1 and No. 2-b. Imprisonment with labor for each crime, not more than five years

[Determination of Sentence 1] and 2-B. Each of the crimes of this case committed with three months of imprisonment with labor is giving and receiving money under the pretext that the defendant will obtain a building permit, etc. belonging to the duties of a public official, and thus undermining the social trust in the fairness and integrity of the execution of public duties, 40 million won as a result of the crime of this case, and 2-b. of the holding that each of the crimes of this case received KRW 20 million as a result of the crime of this case and did not return without any small amount, and the crime of this case No. 1 of the holding during the suspension period of execution due to the crime of violation of the Punishment of Violences, etc. (joint conflict) of the Criminal Power Act, and the crime of this case No. 2-B of the holding judgment during the suspension period of execution due to the crime of this case's crime of this case's crime of this case's crime of this case's crime of this case's

However, the crime No. 1 in the judgment is a crime record (3) among the criminal records in which the judgment becomes final and conclusive on April 28, 2011, and the crime of violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (recursed Materials) which became final and conclusive on January 21, 2012, and the crime of violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (recursed Materials) and Article 2-b) of the judgment in the judgment. The crime of this case is a crime record (3) under which the judgment becomes final and conclusive on April 28, 2011 is to take into account the case and equity with the criminal records in which the judgment is rendered on April 28, 2011. The confession of all of the crimes in this case is made

Judge Park Jong-chul

Judge Lee Young-young

Judges Cho Jong-sung