Defendant 1 and one other

Defendant 2 and Prosecutor

The Vice-Jung (Public Prosecution) and the stuffy (public trial)

Attorneys Cho Jong-sik et al.

Gwangju District Court Decision 2011Gohap504 Decided December 12, 2012

All appeals by Defendant 2 and prosecutor against the Defendants are dismissed.

1. Progress of the lower court

The lower court found Defendant 2 guilty of violating the Act on the Aggravated Punishment, etc. of Specific Crimes (Bribery) among the facts charged against Defendant 2, but found Defendant 2 not guilty of the offering of bribe and the facts charged against Defendant 1.

On the other hand, Defendant 2 appealed the acquittal portion on the ground of mistake of mistake or misunderstanding of legal principles, respectively.

2. Summary of grounds for appeal;

A. Defendant 2

(1) The Defendant was not an officer or employee of Nonindicted Co. 1 (Nonindicted Co., Ltd., Ltd., in the judgment of the Supreme Court) (hereinafter “Nonindicted Co. 1”) who is a specialized management business entity specialized in improvement projects, and the amount received from Nonindicted Co. 2 is either a loan or an investment

(2) Article 84 of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (amended by Act No. 944 of Feb. 6, 2009; hereinafter “Urban Improvement Act”) stipulates that executives and employees of a rearrangement project management contractor are deemed public officials in the application of Articles 129 through 132 of the Criminal Act. The term “executive officers and employees of a rearrangement project management contractor” as provided in the above Article 2 of the Act on the Aggravated Punishment, etc. of Specific Crimes (hereinafter “Special Crimes Act”) is highly unconstitutional as it is possible to interpret the term as a multiple, and it is highly unconstitutional against the principle of clarity in the principle of no punishment without law. Article 2 of the Act on the Aggravated Punishment, etc. of Specific Crimes (hereinafter “Special Crimes Act”) provides aggravated punishment depending on the amount of money for a person who commits a crime under

(b) Prosecutors;

(1) The part on the violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (Bribery) due to the offering of bribe by Defendant 2 and the acceptance of bribe by Defendant 1

Defendant 2 clearly stated at the prosecutor’s office that Defendant 1 paid money on behalf of Defendant 1 without Defendant 1’s wishing to receive money, and there is no reasonable ground to obtain the reversal statement at the court of original instance, and the Defendants prepared a letter of commitment to repay debts retroactive to Defendant 2 on June 18, 201 in preparation for an investigation with Nonindicted 3 on October 18, 201, and prepared a letter of commitment to repay debts retroactive to Defendant 2, and Defendant 1 remitted money to Defendant 2, and divided conversations with Defendant 2 to return money to Defendant 1. Fully taking account of the following: (a) Defendant 1 received a bribe of KRW 220 million from Defendant 2 to Defendant 2; and (b) Defendant 2 received a bribe of KRW 220 million from Defendant 2.

(2) Violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (Bribery) due to the acceptance of bribe from Nonindicted 2 by Defendant 1

In full view of the circumstances such as the reversal of most of the statements made by the prosecutor in the court below at the court below, and the fact that Defendant 1 used most of the 15 billion won transferred to the account for personal use, it can be acknowledged that Defendant 1 received a bribe in the amount of KRW 135 million from Nonindicted 2.

3. Judgment on the mistake of facts or misapprehension of legal principles by Defendant 2

A. Whether Article 84 of the Urban Improvement Act violates the principle of clarity

The principle of no punishment without the law, which is guaranteed through Articles 12 and 13 of the Constitution, means that crimes and punishment must be determined by law. The principle of clarity derived from such principle of no punishment without the law refers to what is intended to punish law, what can be predicted by anyone who can determine the punishment, and that the elements of punishment should be clearly defined so as to enable him/her to decide his/her act. However, even though the elements of punishment should be clear, it is not necessary to define all the elements of punishment as simple descriptive concept, and even if a person uses a concept that requires complementary interpretation of judges somewhat wide range, if the person has a sound common sense and ordinary legal sentiment, it does not conflict with the clarity of punishment required by the Constitution if the person has a provision that enables him/her to know the protected legal interests of the punishment law, acts prohibited from the punishment law, and the kind and degree of punishment. In addition, whether a certain norm is clear or not, it can be reasonably determined whether it gives a fair notice of the meaning of the law, and whether it can be interpreted or reasonably excluded from the legislative purpose or enforcement of the law.

In full view of the following facts, “any person who falls under any of the following subparagraphs shall not file an application for registration of a rearrangement project management business entity, shall not be an executive officer or employee representing or assisting the business affairs of a rearrangement project management business entity,” and “a cooperative shall have one head, director, or auditor of the cooperative” and “a representative director, director, or auditor listed in the corporate register and the corporate register” are deemed public officials in the application of Articles 21(1) through 132 of the Criminal Act, if only the representative director, director, or auditor listed in the corporate register are deemed public officials, it shall be reasonable to interpret that Article 84 of the Urban Improvement Act does not include registration on the corporate register, but it shall not constitute a person who actually exercises the authority of the representative director, etc. and who is unable to punish a person who receives a bribe, thereby achieving the legislative purpose of the rearrangement project.

Therefore, Article 84 of the Act on the Maintenance and Improvement of Urban Areas does not violate the principle of clarity required by the principle of no punishment without law, in light of the legislative purpose of the Act.

B. Whether applying the provision of Article 2 of the Special Cases Act to the executives and employees of the management entity specialized in improvement projects violates the principle of excessive prohibition under the Constitution

Article 84 of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents, which restricts executives and employees of a rearrangement project management contractor as public officials in the application of the provisions of bribery under the Criminal Act, is aimed at ensuring the normal operation of a rearrangement project and fairness in the affairs of an association by demanding the purchase of public officials and the integrity of their duties. Thus, in order to achieve the legislative purpose, the legislative purpose of the Act is legitimate. In addition, it cannot be concluded that it is inappropriate because the executives and employees of a rearrangement project management contractor are deemed public officials in the application of the provisions of bribery under the Criminal Act. In addition, even if the executives and employees of a rearrangement project management contractor are punished in accordance with the provisions of bribery under the Criminal Act, it cannot be deemed an excessive punishment exceeding the extent necessary for accomplishing the legislative purpose, and the case where the executives and employees of a rearrangement project management contractor need integrity and integrity due to the public nature of the public official's duties even if they are not public officials, it cannot be deemed that the act related to the relevant duties is clearly invalidated or similar to the act of bribery of public officials under the our criminal law system.

As seen above, Article 84 of the Urban Improvement Act does not violate the principle of excessive prohibition to allow executives and employees of a management entity specialized in improvement projects to be deemed public officials in applying the provisions of bribery under the Criminal Act, so long as there is no reason to treat the executives and employees of a management entity specialized in improvement projects differently from the general public in applying Article 2 of the Act on Special Cases, applying Article 2 of the Act to the executives and employees of a management entity specialized in improvement projects cannot be deemed to violate the principle of excessive prohibition.

(c) Whether the defendant is an executive officer or employee of a specialized management businessman of rearrangement projects;

The following circumstances acknowledged by the evidence duly adopted and examined by the court below: (i) the defendant was registered as a director in the corporate register of the above company from May 22, 2003 to August 17, 2006, the date of incorporation of the non-indicted 1; (ii) the defendant was registered as an outside director on September 20, 201; and (iii) the defendant was using the position as a full-time adviser of the non-indicted 1 from around 2005; (iv) the defendant was delegated with the authority of the non-indicted 1, the actual representative of the non-indicted 1, and entered into a contract for specialized management of the housing reconstruction and improvement project with the non-indicted 1 on behalf of the non-indicted 4; (iv) the defendant was in the control of the liquidation district; (v) the non-indicted 4 gave the right to enter into the reconstruction contract with the defendant without the resolution of the general meeting of the non-indicted 1, and (v) the defendant was in fact deemed as a public official of the non-indicted 1, the Act.

D. Whether the money given by Nonindicted 2 is a loan or an investment

In the context of the crime of bribery, if the accepter claims that he/she has received money from the accepter but not received the money from the accepter, whether or not the accepter actually borrows the money shall be determined by taking full account of all the objective circumstances revealed by evidence, such as the motive, reason for delivery, and method of receiving the money from the accepter, the relationship between the accepter and the accepter, the position and work experience of the accepter, the need for borrowing the money, the possibility of borrowing the money from the person other than the accepter, the amount of the borrowed money and the circumstances of the accepter, the economic situation of the accepter and the amount of the borrowed money, the amount of the borrowed money, the amount of the borrowed money, the amount of the guaranteed money, the existence of the guaranteed economic interest related to the accepter, the repayment of principal and interest of the accepter, and the possibility of compulsory execution (see Supreme Court Decision 2007Do3943, Sept. 7, 207, etc.).

In full view of the following circumstances acknowledged by the evidence duly adopted and examined by the court below, ① the representative director of Nonindicted Co. 5 and Nonindicted Co. 6 and the representative director of Nonindicted Co. 7 in the name of the representative director of Nonindicted Co. 2 on January 31, 2007, an agreement on the specialized management services for reconstruction was prepared. In the above agreement, Nonindicted Co. 8 and Nonindicted Co. 2 stated that the above agreement was actually made between the Defendant and Nonindicted Co. 2; ② the above agreement was that Nonindicted Co. 2 lent all expenses incurred in the provision of services to Nonindicted Co. 5 and the representative director of Nonindicted Co. 5 agreed to actively cooperate in the selection of Nonindicted Co. 2 as the contractor at the time of construction requested by Nonindicted Co. 2; however, if the Defendant was not selected as the contractor, it is reasonable to conclude that the agreement was terminated if Nonindicted Co. 2 was selected as the contractor, and that Nonindicted Co. 2 would not be paid KRW 300,000,000,000.

Meanwhile, there is no temporary or future uncertainty of benefits in the crime of bribery. Unless it is absolutely impossible, it constitutes a benefit in the crime of bribery even if it falls under a conditional condition, and thus, even if Nonindicted 9 Company was not selected as a contractor and there was a situation that the Defendant should return the money received under the agreement to Nonindicted 2, such circumstance does not affect the establishment of the crime of bribery.

E. Whether business relationship is related

A public official’s duty in the crime of bribery includes not only the act of duties under the control of the law, but also the act of assisting or influencing the decision-making authority as well as the act of duties closely related to or de facto processing in relation to the duties (see Supreme Court Decision 2006Do987, May 12, 2006). Thus, in the case of an executive officer or employee of a rearrangement project management contractor, the act constitutes a bribe if a public official has received unjust benefits in relation to the duty under Article 69 of the Act or the act of compensation in relation to the duty closely related thereto.

With regard to this case, Article 69 subparag. 4 of the Act on the Maintenance and Improvement of Urban Areas includes "support for the business of selecting a contractor for rearrangement project", and the selection of a contractor for rearrangement project is closely related to the duties of the officers and employees of the rearrangement project company, so the consideration for the duties is also recognized.

F. Sub-committee

In full view of the above circumstances, Defendant 2 can be recognized as having received bribe from Nonindicted 2 in relation to the selection of a contractor for improvement project who is an executive officer or employee of the contractor for improvement project and who is closely related to his/her duties. Therefore, the Defendant’s assertion of mistake

4. Judgment on the prosecutor's assertion of mistake of facts

A. The part on the violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (Bribery) due to the offering of bribe by Defendant 2 and the acceptance of bribe by Defendant 1

In a criminal trial, the burden of proof for the facts constituting a crime prosecuted is to be borne by a public prosecutor, and the conviction shall be based on evidence with probative value that leads a judge to have the conviction that the facts charged are true to the extent that there is no reasonable doubt. This legal doctrine applies likewise to cases where the nature of the received money is disputed as to whether it is a bribe. Thus, if there is no evidence of probative value that the nature of the received money is a bribe is true to the extent that there is no reasonable doubt as to the facts that it is a bribe, even if there is a doubt of guilt against the defendant (see Supreme Court Decisions 2011Do7261, Nov. 10, 201; 2012Do6280, Aug. 30, 2012).

In light of the following circumstances acknowledged by evidence, ① Defendant 1 has been promoting reconstruction projects with Defendant 2 after being introduced from Nonindicted 10 around 203 and became aware of Defendant 2. Defendant 1 has been paying money to Defendant 2. It is hard to recognize that Defendant 1 had paid money from Defendant 2 on several occasions from February 2007 to October 18, 201 (Evidence No. 872 of the evidence record) to Defendant 2, unlike the prosecutor’s statement, on the one hand, Defendant 2 lent money to Defendant 1’s non-indicted 1’s non-indicted 1’s non-indicted 2’s non-indicted 1’s non-indicted 2’s non-indicted 1’s non-indicted 2’s non-indicted 1’s non-indicted 2’s non-indicted 1’s non-indicted 2’s non-indicted 1’s non-indicted 2’s non-indicted 3’s non-indicted 1’s non-indicted 2’s non-indicted 1’s non-indicted 2’s non-indicted 1’s statement.

B. Violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (Bribery) due to the bribery against Defendant 1’s non-indicted 2

The following circumstances acknowledged by evidence, namely, ① the Defendant stated that the Defendant would make a statement that “if you take advantage of any other place, they would return 20 million won, it would be difficult for the Defendant to take part in the business of the committee for the promotion of the housing reconstruction project of YGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGG.

5. Conclusion

Therefore, since both the appeal by Defendant 2 and the prosecutor are without merit, it is dismissed in accordance with Article 364(4) of the Criminal Procedure Act. It is so decided as per Disposition.

Judges Kim Dae-ho (Presiding Judge) Kim Jong-ho