Defendant

Defendant

Kim Yong-type (prosecutions) and Lee Jong-tae (Trial)

Law Firm Dok-do et al. and three others

Incheon District Court Decision 2012Gohap281 Decided July 5, 2012

The judgment of the court below is reversed.

The defendant shall be innocent.

1. Summary of the grounds for appeal;

A. A. misunderstanding of facts or misunderstanding of legal principles

Article 45 of the Construction Technology Management Act is deemed to be a public official in the application of bribery only to the "member of the Design Advisory Committee, who is not a public official," and since the defendant is only commissioned as a member of the Design Advisory Committee, he does not have been commissioned as a member of the Design Advisory Committee, Article 45 of the Construction Technology Management Act, which is a public official's provision

B. Unreasonable sentencing

The sentence of the lower court (one year of imprisonment, two years of suspended execution, fine and additional collection charges, each of which is 10 million won), shall be too unreasonable.

2.2. Determination

A. Summary of the facts charged

The Defendant, as a professor of ○ University Environment Landscaping from May 201 to December 201, 201, was commissioned as a review member of the Korea Environment Corporation, the Design Advisory Committee (Turn-Key), and was ordered by the said Corporation as a review member of various design and construction works ordered by the said Corporation (Turn-Key). The Defendant was in charge of the review and evaluation of design documents submitted by each company participating in bidding.

The Defendant was asked by Nonindicted Co. 2’s team leader of Nonindicted Co. 1 (hereinafter “Nonindicted Co. 1”) to grant good scores to Nonindicted Co. 1 at the time of designing and evaluating the Circuit bid work. On February 8, 2011, the Defendant was selected as a deliberation member of the “△△△△ General Industrial Complex Construction Project” corporation within the Design Advisory Committee, which was ordered by the Korea Environment Corporation located within the △△△△△△○ General Industrial Complex Construction Project Office in Seo-gu, Seo-gu, Seo-gu, Incheon, Seo-gu, Seoul, and was given points corresponding to 180 out of the participating companies in the △△△△△△○ Complex Construction Project, which was ordered by the said Corporation. On February 25, 2011, the Defendant reviewed the design documents submitted by the △▽▽▽▽▽▽▽▽▽▽▽△△ and the △△△△ Group Co., Ltd., Ltd., which participated in the tender, and gave them points corresponding to 14.80.

After that, around March 16, 201, the Defendant received cash KRW 50,000,000,000 from Nonindicted Party 2’s team leader at the office of the Defendant at ○○ University located in Cheongju-si ( Address omitted) to the effect that, at the time of designing and evaluating the said construction work, the Defendant was given points equivalent to KRW 1,00,00,000 from Nonindicted Party 2’s team leader in cash.

Accordingly, the defendant accepted a bribe of KRW 10 million in relation to the duties of the Korea Environment Corporation Deliberation Committee member, which is deemed a public official.

(b) Facts of recognition;

The following facts can be acknowledged in full view of the evidence duly admitted and examined by the court below and the trial court.

1) On May 28, 2010, the Defendant was commissioned by the president of the Korea Environment Corporation as a deliberation committee in the field of construction and landscaping by the Korea Environment Corporation’s design deliberation subcommittee, which was from January 1, 201 to December 31, 201.

2) On February 8, 2011, the Defendant selected △△△ general industrial complex wastewater terminal construction projects ordered by the Korea Environment Corporation (hereinafter only referred to as “△△△ wastewater treatment facilities projects”) as a subcommittee for deliberation on the design of △△△ wastewater construction projects. The Defendant participated in the deliberation of the △△△ wastewater treatment facilities projects. The Defendant selected the design documents submitted by the △△△△△△△△△△△△△○ consortium, which participated in the tender, and determined the design documents submitted by the relevant consortium, and granted 14.80 points out of 1 of the participating companies at the conference room of the Gangseo-gu Seoul Metropolitan Government 712-1, on February 25, 2011.

3) On March 16, 2011, the head of Nonindicted Company 2, who was selected as the △△ wastewater treatment facility business operator, was found to be the process of creating the environment of the ○ University working for the Defendant, and the head of Nonindicted Company 2, who was selected as the △△ wastewater treatment facility business operator, and was able to easily evaluate Nonindicted Company 1 in relation to the △△ wastewater treatment facility business, and was able to give the Defendant with a 50,000 won totaling KRW 10 million.

4) The provisions relating to the Design Advisory Committee and the design review subcommittee among the design advisory guidelines implemented by the Korea Environment Corporation on its own (hereinafter referred to as the instant guidelines) are as follows:

○ Article 5 (Composition of Design Advisory Committee)

(1) The Design Advisory Committee shall be composed of one chairman, one vice-chairman, not more than 100 ex officio members and not more than 2,000 commissioned members.

(3) The members shall be classified into ex officio members and commissioned members as follows:

1. Ex officio members shall be the head of the department in charge of technical job series, team leader of technical job series, director of the department in charge of the Ministry of Environment and officials in charge;

2. Commissioned members shall be appointed or commissioned by the chief director of the GEPS from among the following persons:

Omission of each title

○ Article 8 (Composition of Subcommittees)

(1) The chairperson may organize and operate subcommittees by field in order to efficiently operate the Design Advisory Committee in accordance with matters to be deliberated and consulted.

○ Article 19 (Composition of Design Deliberation Subcommittee, Appointment of Members, etc.)

(1) The Design Advisory Committee shall organize and operate a design deliberation subcommittee (hereinafter referred to as the "subcommittee") in order to efficiently carry out the matters provided for in the following subparagraphs:

(3) The subcommittee shall include a majority of its employees.

(6) The president of the NHIS shall appoint or commission any of the following persons as a subcommittee of subcommittee, and shall immediately disclose the list of such persons:

(7) No commissioned design adviser under Article 5 may concurrently serve as a design deliberative subcommittee member.

§ 20. Selection and holding of members of subcommittees

(1) The subcommittee concerning the matters to be deliberated upon under Article 19 (1) shall select the small chairperson and deliberation committee members by the following methods from among the subcommittee members for each case of design deliberation requested for deliberation:

Omission of each title

C. Determination

1) The principle of no punishment without the law, which is guaranteed through Articles 12 and 13 of the Constitution, refers to the principle of no punishment without the law, and the principle of clarity, which is derived from such principle of no punishment without the law, refers to what is intended to punish a law, and what is expected by anyone who can anticipate and what is the elements of a crime so that anyone can decide his/her act accordingly. In light of such purport, the interpretation of a penal provision should be strict, and it is not permitted to excessively expand or analogically interpret the meaning of a penal provision in the direction unfavorable to the defendant, as it is contrary to the principle of no punishment without the law (see Supreme Court Decision 2011Do7725, Aug. 25, 201).

2) In order to punish the Defendant who received money and valuables from Nonindicted 2 as a member of the Design Advisory Committee which is deemed a public official under Article 45 of the Construction Technology Management Act in relation to the deliberation of the △△ wastewater treatment facility business, the Defendant shall be punished as a member of the Design Advisory Committee who is deemed a public official under Article 45 of the Construction Technology Management Act. According to the above facts of recognition, the Guidelines for Operation of the Design Advisory Committee of the Korea Environment Corporation (hereinafter referred to as the instant Guidelines) stipulates that the commissioned design advisory committee shall not be concurrently held as members of the Design Advisory Committee, and the Defendant shall not be commissioned as a design advisory committee as a member of the Design Advisory Committee, and there is no fact that the Defendant is separately commissioned as a design advisory committee. Nevertheless, if a member of the Design Deliberation Committee falls under the category of a member of the Design Advisory Committee

3) Examining the Enforcement Decree of the Construction Technology Management Act (hereinafter only referred to as the "Enforcement Decree") 1), the Design Advisory Committee stipulates that the design review subcommittee shall be organized and operated, and since the Design Deliberation Subcommittee is a subcommittee composed of the efficiency of the duties of the Design Advisory Committee, a member of the Design Deliberation Committee may immediately be a member of the Design Advisory Committee.

However, considering the following points, a member of the design deliberation subcommittee of the contracting authority shall not be considered as a member of the design advisory committee just because he was commissioned as a member of the design deliberation subcommittee unless he is separately commissioned as a member of the design advisory committee

A) Article 5(1) of the Construction Technology Management Act provides that the Central Construction Technology Deliberation Committee (hereinafter referred to as the “Central Committee”) shall be established in the Ministry of Land, Transport and Maritime Affairs in order to deliberate on matters concerning construction technology, such as the promotion, development, and utilization of construction technology, and the Local Construction Technology Deliberation Committee (hereinafter referred to as the “Local Committee”) shall be established in the Special Metropolitan City, Metropolitan Cities, Special Self-Governing City, Do, and Special Self-Governing Province. Article 5-2(1) of the same Act provides that a design advisory committee may be established in the contracting authority to respond to the advice of the contracting authority on the adequacy of design, execution, etc. of construction works. However, Article 5-2(1) of the same Act provides that the Central Committee, local committees, and design deliberative committees may be established in the Enforcement Decree, without any provision

In addition, the Enforcement Decree provides that the design deliberation subcommittee organized and operated by the central committee shall be comprised only of the members of the central committee (Article 10(2) of the Construction Technology Management Enforcement Decree), while Article 10(3) through (6) of the Enforcement Decree, which stipulates that Article 10(2) of the Enforcement Decree, which stipulates that Article 10(3) through (6) shall apply mutatis mutandis to the design deliberation subcommittee of the central committee, but Article 10(2) of the Enforcement Decree, which stipulates that only the members of the central committee, shall constitute the design deliberation subcommittee, shall not apply mutatis mutandis to the organization of the design deliberation subcommittee (Article 21(6) of the Enforcement Decree), and that a majority of the subcommittee members shall be comprised of the contracting authority members (Article 21(6) of the Enforcement Decree), even if the member of the design deliberation subcommittee is not a member of the contracting authority, it shall not be a member of the design deliberation subcommittee, unless he is separately commissioned as a member of the design deliberation committee, since it

If the provisions of the Enforcement Decree provide that a person who is not a member of the Design Advisory Committee may be commissioned as a member of the Design Advisory Committee, it is legitimate that the Korea Environment Corporation (this case's guidelines shall be indicated as a design advisory member. However, as seen later, the members and design advisory member shall be considered as the same meaning) and the members of the Design Advisory Committee (the guidelines of this case shall be indicated as the design advisory member) are not in violation of the Enforcement Decree, and it is not a violation of Article 19 (3) of the Guidelines. Furthermore, according to Article 19 (3) of the Guidelines of this case, an ex officio member of the Design Advisory Committee shall include a majority of the internal employees of the Corporation as a member of the subcommittee. Compared with the fact that an ex officio member of the Design Advisory Committee provides that the head of the Technical Function division, the head of the Technical Function division, the director of the department in charge of the Ministry of Environment, and the officer or staff of the Ministry of Environment shall be commissioned as a member of the Design Advisory Committee, it may not be interpreted that he is commissioned as a member of the Design Advisory Committee.

B) We examine whether the design review subcommittee is an internal organization of the design advisory committee, and whether it can be seen as a member of the design advisory committee.

According to the Enforcement Decree, the design advisory committee provides that the design deliberative subcommittee may be organized and operated (However, according to the guidelines of this case, a member of the design deliberative subcommittee shall be appointed by the president of the Korea Environment Corporation). However, even though the design advisory committee establishes and operates a design deliberative subcommittee to efficiently perform part of the duties of the design advisory committee, such fact alone does not directly mean that the member of the design deliberative subcommittee is a member of the design advisory committee. For the purpose of strengthening the fairness and expertise of duties, the design advisory committee may organize a design deliberative subcommittee separate from the design advisory committee and entrust some duties to the design deliberative subcommittee in order to secure the efficiency and fairness of duties. Even if the family design deliberative subcommittee is an internal organization of the design advisory committee, a person who is not a member of the design deliberative subcommittee may be a member of the design deliberative subcommittee in the composition of the design deliberative subcommittee, and the qualification requirements of the design deliberative subcommittee shall not be regarded as a member of the design advisory committee without any particular procedure in light of the fact that the design deliberative subcommittee separately prescribes the qualification requirements of the member of the design advisory committee.

C) We examine whether the design deliberation subcommittee can be interpreted as a “member of the Design Advisory Committee”

Article 45 subparagraph 2 of the Construction Technology Management Act provides that "the members of the Design Advisory Committee" shall be deemed public officials. There may be questions whether "the members of the Design Advisory Committee" in this case can be viewed as a concept that covers design advisory members and design deliberative members prescribed in the guidelines of this case.

The Construction Technology Management Act provides for the establishment and operation of the Design Advisory Committee and does not include the term "Design Advisory Committee" in addition to the term "Design Advisory Committee member", and does not include any reference to "Design Advisory Committee member" as in the Construction Technology Management Act. However, only in the instant guidelines, the term "Design Advisory Committee member" is used in lieu of the term "Design Advisory Committee member" in the Chapter concerning the operation of Design Advisory Committee, and the term "Design Deliberation Committee member" is used in lieu of the term "Design Advisory Committee member" in the Design Deliberation Committee member, and the term "Design Deliberation Committee member" and the term "Design Advisory Committee member" as "Design Advisory Committee member" in the Construction Technology Management Act is referred to as "Design Advisory Committee member" in the instant guidelines. Thus, there is no ground to regard the term "Design Advisory Committee member as the concept "Design Advisory Committee member" and "Design Deliberation Committee member" as the concept "Design Advisory Committee member" in the Enforcement Decree of the Construction Technology Management Act, which does not include "Design Advisory Committee member" and "Design Deliberation Committee member" in addition to the term of "Design Advisory Committee member".

Therefore, Article 45 subparagraph 2 of the Construction Technology Management Act provides that the term "member of the Design Advisory Committee" shall not mean a design adviser as stipulated in the instant guidelines, but shall not be deemed a concept that covers design deliberation subcommittee members.

D) We examine whether it can be interpreted as a member of the Design Advisory Committee in light of the practical role of the members of the Design Deliberation Subcommittee.

According to Article 19 of the Guidelines of this case, the design deliberation subcommittee shall conduct a deliberation on the eligibility of the basic design for a package tender and alternative tender under Article 85(6) of the Enforcement Decree of the State Contracts Act, the deliberation on the technical proposal for technical proposals under Article 103(4) of the Enforcement Decree of the State Contracts Act, and the deliberation on the technical proposal for public offering and technical proposal under Article 105(5) of the Enforcement Decree of the State Contracts Act. Thus, considering that the legislative intent of the provision on the title of public officials in the Construction Technology Management Act is primarily to prevent the corruption by the members of the design deliberation subcommittee, it may be argued that the members of the design deliberation subcommittee shall be included in the “design Advisory Committee” in the process of deliberation by the Design Advisory Committee.

The design advisory committee system was newly established upon the amendment of Construction Technology Management Act to Act No. 6369 on January 16, 2001, and the Construction Technology Management Act was amended to Act No. 9848 on December 29, 2009, and Article 45 No. 2, which is deemed a public official in the application of Article 129 of the Criminal Act, was newly established after the revision of Construction Technology Management Act to Act No. 9848 on December 29, 2009. In view of the importance of the design advisory committee's duties, the provision on the title of the public official is newly established to correct the fact that the members of the design advisory committee who received money or goods in relation to the duties could not be punished as acceptance of bribe in consideration of the importance of the duties of the members of the design advisory committee, as in the case of the design advisory committee's member, to punish them as a public official in the same way as in the case of the law of the design advisory committee's interpretation, and thus, to punish the members to be considered as public official in the construction of the former Act No. 2016.

4) Sub-committee

Therefore, the defendant who was commissioned as a member of the design deliberation subcommittee of the Korea Environment Corporation and was not separately commissioned as a member of the design advisory committee cannot be the subject of the crime of acceptance of bribe because he was not deemed a public official under Article 45 subparagraph 2 of the Construction Technology Management Act. Nevertheless, the judgment of the court below which recognized the guilty of the crime of acceptance of bribe on the premise that the defendant falls under a member of the design advisory committee of the Korea Environment Corporation, has an error of law

3. Conclusion

Therefore, the defendant's appeal is justified, and the judgment of the court below is reversed in accordance with Article 364 (6) of the Criminal Procedure Act, and it is again decided as follows.

The summary of the facts charged of this case is the same as that of the above 2-A(A). Since there is no proof of a crime for the same reason as that of the above 2-C(C), the defendant is acquitted under the latter part of Article 325 of the Criminal Procedure Act.

Judges Han-yang (Presiding Judge)

Note 1) Other relevant statutory provisions are written in the relevant statutory provisions of the attached Form.