2014Gohap411 Misappropriation

1. A;

2. B

3. C.

4. D;

5. E.

Do superior officers (prosecutions) and Do senior officers (public trials)

Attorney F. (P. for the defendant)

June 20, 2014

1. Defendants A and C shall be punished by imprisonment for one year, by imprisonment for each of them, by ten months, and by imprisonment for six months, respectively.

2. However, with respect to the Defendants, the execution of each of the above punishments shall be suspended for two years from the date this judgment became final and conclusive.

3. 6,450,00 won from Defendant A, 24,546,50 won from Defendant B, 63,146,500 won from Defendant C, and 54,35,00 won from Defendant E shall be collected respectively.

Criminal facts

1. Property in breach of trust by Defendant A, B, and C;

Defendant A was awarded a contract with the KH Corporation (hereinafter referred to as the “SH Corporation”) to the G site manager of the Gangnam-gu Seoul Metropolitan Government H apartment construction project, which subcontracted to the KH Corporation (hereinafter referred to as the “SH Corporation”), and was awarded a subcontract for the said construction project under the condition that G would bring into a stage of earth and sand at the said construction site, and even though there was an occupational duty that is not to receive money for the said construction site from a private transport company that brought into a earth and sand at the said construction site, Defendant B and C in the management office at the above construction site around March 2012, the management office at the above construction site proposed that “the amount of KRW 10,000 per one of them shall be paid for the earth and sand transport companies to bring in the soil and sand at the site, and the Defendant B and C agreed to do so shall be “one person of the above construction site”.

Accordingly, Defendant B and C received illegal solicitation from the private transport enterprises to give money to the construction site, and from March 13, 2012 to May 5, 2012, Defendant B and C brought in large quantities of 6,401 dump trucks at the same construction site as indicated in the attached list of crimes (1), and received money totaling KRW 115,543,00 from the above private transport enterprises for the purpose of sanding.

As a result, the Defendants conspired to acquire financial benefits equivalent to KRW 115,543,00 in return for an illegal solicitation in connection with Defendant B’s affairs of bringing-in of earth and sand.

2. Acceptance of a breach of trust by Defendant C, D, or E

Defendant D was entrusted with the business of bringing-in of earth and sand in the construction site by K, which is the head of the I’s site, in relation to the Gangnam-gu Seoul Gangnam-gu J Construction Project contracted by the SH Corporation, and the said construction was awarded a contract under the condition that he will bring-in of earth and sand at the construction site at the above construction site. Thus, Defendant D had Defendant C and E receive money from the above construction site in return for bringing-in of earth and sand from the above construction site in return for the payment of money in return for bringing-in of earth and sand from the above construction site.

Accordingly, Defendant C and E received dump trucking KRW 15,00 to KRW 30,00 per dump trucking truck in return for an illegal solicitation from the private transport company to bring in the construction site. From September 4, 2012 to October 15, 2012, Defendant C and E received KRW 92,95,000 for a total of KRW 4,203 for dump trucking truck from around September 4, 2012, and received money as indicated in the attached list of crimes (2).

As a result, the Defendants conspired to acquire financial benefits equivalent to KRW 92,955,00 in return for an illegal solicitation in connection with Defendant D’s affairs of bringing-in of earth and sand.

A summary of the steam

1. Defendants’ legal statement

1. Each prosecutor's interrogation protocol of L, M, or N;

1. Each police record statement of 0, P, Q, R, S, T, U,V, W, X, and K;

1. Details of deposit of the earth and sand set forth in the sub-committee, written consent to bring in of the earth and sand set forth in the sub-committee, written consent to bring in of the earth and sand set forth in the sub-committee, detailed statement of transaction, remittance confirmation, request for bringing in of the earth and sand set forth in the table, confirmation certificate, confirmation certificate, statement of transaction statement, request for cooperation in investigation, site description data, request for cooperation in investigation, site entry into the outside soil set forth in the sub-soil set forth in the sub-committee 2 area 3 area 3 area 3 area 3 area 3 area 3 area 3 area 3 area 3 area 3 area 3 area

1. Each report on internal investigation (the sequence 33, 41, 44, 55, 61, 64, 66, 70 of the evidence list);

Application of Statutes

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

(a) Defendant A, B, D, and E: Article 357(1) of the Criminal Act, comprehensively, by cover each of them;

(b) Defendant C: Article 357(1) of the Criminal Act by covering each construction site at each construction site.

2. Aggravation of concurrent crimes (Defendant C);

The former part of Article 37, Article 38(1)2, and Article 50 of the Criminal Act (an aggravated punishment for concurrent crimes in relation to entry of earth and sand at the International Construction Site with a heavier penalty)

3. Suspension of execution (the defendants);

Article 62(1) of each Criminal Code (The following consideration of favorable circumstances among the reasons for sentencing):

4. Collection (Defendant A, B, C, and E).

The latter part of Article 357(3) of the Criminal Code

[First, with respect to the crime of taking property in breach of trust listed in the criminal facts No. 1 in the judgment, Defendant A acquired 6,450,00 won out of the amount of 115,543,00 won in this part, and Defendant B and C acquired the remaining 49,093,000 won in distribution and acquisition, but there is no evidence to verify the exact distribution among the two. Thus, Defendant A collected 6,6450,000 won in equally divided shares of the above 49,093,000 won in Defendant B and C, and each of the above 24,546,500 won in equally divided shares from Defendant B and C, respectively.

On the other hand, with respect to the crime of breach of trust as stated in the crime No. 2 of the judgment, Defendant C acquired each of the 92,955,000 won in this part of the revenues (the 57,600,000 won in private land transferred to the account in the name of Defendant C and Y - the 13,000,000 won in private land transferred to Defendant E - the 54,355,000 won in cash (the 35,35,000 won in private land transferred to the Z account in the name of Defendant C + the 6,000,000 won in private land transferred from Defendant C + the Z account 13,00,000 won in private land transferred from Defendant C + six million won in money received from Defendant C, while the 386,000,000 won in the case of Defendant D does not have any property interest due to this part of the crime, Defendant C is collected additionally from each of Defendant C.

Therefore, the amount of additional collection by Defendant A is KRW 66,450,000 in the case of Defendant B, KRW 24,546,50 in the case of Defendant B, KRW 63,146,50 in the case of Defendant C (=24,546,500 + KRW 38,600 in the case of Defendant E) and KRW 54,35,00 in the case of Defendant E]

Reasons for sentencing

1. The scope of punishment;

(a) Defendant A, B, D, and E: Imprisonment with prison labor for not more than five years;

(b) Defendant C: Imprisonment with prison labor for not more than seven years and six months;

2. Determination of sentence;

A. Defendant A and C did not have a two-year sentencing guidelines for suspended execution of one year for each of the above cases: (a) under the conditions unfavorable to the Defendants; (b) Defendant A was the site manager at the government-funded construction site; (c) Defendant A was prohibited from receiving the price for bringing in of earth and sand from a private soil transportation enterprise; (d) Defendant B and C was delegated the duties of bringing in of earth and sand by using his status; and (e) requested Co-Defendant B and C to collect the price for bringing in of earth and sand from a private soil transportation enterprise; and (e) he personally received the specified amount of money; (e) the nature of the crime is bad; (g) the total amount of the money collected by the Defendant remains 1,540,000 won; and (g) Defendant C was not less than 6,6450,000 won and the total amount of the money acquired by the Defendant was more than 20,000 won, and more than 360,000,000 won of the total amount of profits acquired by Co-Defendant C and the remaining amount of profits.

However, on the other hand, the Defendants answer a wrong practice in the construction site where private money is received from private transport companies without any awareness of any particular crime. The Defendants seem to have committed the instant crime. The Defendants divided their mistakes in depth and did not have any record of criminal punishment exceeding fines. In particular, Defendant A collected private expenses for the purpose of preserving the construction cost set at a low level, including using part of the private soil expenses actually received from them for the construction cost, such as equipment cost and personnel expenses, or using them for the use of criminal proceeds. In addition, Defendant C had to provide support to the head and the head of the 3rd level of mental disorder and the head of the 3rd level of mental disorder, and Defendant C had to take into account the following circumstances: (a) the Defendants had to have been sentenced to punishment for a limited period of time in 209; (b) the Defendants had no record of being sentenced to punishment for a limited period of time; (c) the period of punishment for a limited period of time in light of their personal career and health conditions, and (d) the period of punishment for the Defendant C’s children, etc.

B. Defendant B and E did not provide a two-year sentencing guidelines for suspended sentence in October, each of the following cases: (a) the Defendants received a large amount of money from Co-Defendant A or K, who was delegated by Co-Defendant A or K with the duties of bringing-in of earth and sand in the construction site, for illegal solicitation of bringing-in of earth and sand from private transport enterprises and received a total of KRW 11,5540,000 or KRW 9,2950,000 for sand, respectively; (b) Defendant B received a large amount of money for personal benefits of KRW 24,546,50,000; and (c) Defendant E suffered from personal benefits of KRW 54,35,000,000; (d) Defendant B cannot be said to be less than 15,000,000 criminal charges for Defendant E, one-time prior to the suspended sentence, and seven times prior to and after the suspended sentence, etc.

However, on the other hand, all the Defendants were unable to respond to wrong practices in the construction site where money is given and received from private transport companies in relation to bringing in of earth and sand without any particular crime. At present, the Defendants’ actual acquisition profits from the crime of this case remain 24 million won in the case of Defendant B is not good due to notified blood transfusion, high blood pressure, etc., and there was no record of criminal punishment exceeding the fine. Defendant E was sent to life and elementary school students in relation to de facto marriage, and their parents, and the crime of this case is deemed to have led to the crime of this case without any specific awareness, and the Defendants’ actual acquisition profits from the crime of this case remains 24 million won in the case of Defendant B, and there was no history of criminal punishment in the difficult family form, and there was no record of criminal punishment exceeding the fine, and Defendant E took into account the following circumstances: Defendant E appears to have led to the crime of this case, not only to the crime of this case, but also to have reached the age of criminal records or punishment, and the motive and condition of the crime of this case.

C. Defendant D: In this case where the two-year sentencing guidelines have not been prepared for a suspended sentence of six months, the defendant committed a large amount of criminal punishment against the defendant, such as the defendant's violation of his principal duty at the place where he was entrusted with the work of bringing-in of earth and sand in the construction site, and the defendant received a large amount of 9,2950,000 won in total from a private soil transportation company in return for an illegal solicitation for bringing-in of earth and sand, and thus, the crime cannot be deemed to be less than that of a large amount of punishment.

However, on the other hand, it seems that Co-Defendant E, known to the general public, complaining of economic difficulties, led to the crime of this case even if he would be punished, and the degree of participation is the most minor among accomplices, there is no profit that he personally acquired due to the crime of this case, the defendant divided his mistake into his own crime of this case, and there was no criminal conviction for the same kind during that period, and the defendant suffered a considerable loss due to the failure to reach the construction work for six months, and there are no other favorable circumstances, such as the defendant's age, character, environment, occupation, career, career, family environment, family relationship, motive, means and result of the crime, etc., and considering all the sentencing conditions revealed in the trial process of this case such as the defendant's age, character, environment, occupation, career, family environment, health condition, motive, means and result, the defendant should be suspended only once, rather than the sentence imposed, and the defendant shall be sentenced to the above report.

It is so decided as per Disposition for the above reasons.

The assistant judge of the presiding judge;

Judges Yang Young-young

Judges Park Jae-min