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

(b) Acceptance of bribe (a name of a crime recognized for Defendant C: Mediation and Bribery;

Water macephs

(c) good offices acceptance;

(d) Offering of bribe;

1. A.

2.(b) B

3.2(c) c.

4. D. D. D.

Defendants and Prosecutor ( Defendants B and C)

Kim Jong-dae (prosecution) and a panion fever (trial)

E Law Firm (for Defendant A)

Attorney F, Law Firm G (for the defendant B)

Attorney H, J (for the defendant C)

Attorney K (for defendant D)

Busan District Court Decision 2015Gohap162,242 (Consolidated) Decided September 25, 2015

January 28, 2016

1. The part of the judgment below against Defendant C is reversed.

Defendant C shall be punished by imprisonment for a year and fine of KRW 27,00,000.

When Defendant C fails to pay the above fine, the above Defendant shall be confined in a workhouse for a period calculated by converting KRW 100,000 into one day.

27,000,000 won shall be additionally collected from Defendant C.

Defendant C shall be ordered to pay an amount equivalent to the above fine and the additional collection charge.

2. All appeals filed against Defendant A, B, and D and the Prosecutor’s Defendant B are dismissed.

1. Summary of grounds for appeal;

A. Defendants 1)

1) Defendant B’s assertion of mistake or misapprehension of legal principles

(A) With regard to the fact that the "Bribery of bribe under the pretext of supporting the election fund" under Article 3.1 (a) of the Criminal facts of the case 2015 Gohap162 of the judgment of the court below, there was no fact that D made a solicitation to the defendant immediately before the local election at the time when the defendant received the amount of KRW 20 million from D on May 20, 2014, and June 2, 2014, and there was no circumstance to make a solicitation, and the defendant did not offer any convenience in the "Smi Traditional Traditional Price" and "Pauri" business, which D continued by taking advantage of his status as a member of the Busan Busan Metropolitan Council Council. In other words, the election expenses received by the defendant from D are merely nominal, and not received in return for the provision of business convenience, and therefore there was no relation with the defendant's duties or consideration.

(B) With regard to the meaning of the "Bribery of bribery" under Article 3.2 (b) of the Criminal facts of "2015 Gohap162" as stated in the judgment of the court below, there is no fact that the defendant lent D money to request D to assist due to financial difficulties, and at the time there is no fact that the defendant intended to use the above money as the attorney-at-law's fee for the defendant's trial. The above money received from D is only a loan, and it does not receive it as a consideration for the provision of business, and there is no relation or quid pro quo with the defendant's duties. In addition, since there is no uniformity between each acceptance, this part of the crime is not a comprehensive crime, but a substantive concurrent crime by each acceptance act.

(C) Nevertheless, the court below found all of the facts charged above to be guilty on the grounds of its stated reasoning, and further decided as the crime of violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (Bribery) by covering the facts of the case No. 3.b., 2015Da162 as indicated in the judgment of the court below. The court below erred by misapprehending the legal principles on ‘duty-relatedness or consideration for the crime of acceptance of bribe' and ‘the number of crimes', thereby affecting the conclusion of the judgment.

2) Defendant A’s assertion related to the additional collection charge

Since the Defendant returned the full amount of KRW 200 million in cash received from D as stated in the judgment below, as stated in Article 2.162 of the Criminal facts of the case No. 2.162, as stated in the judgment below, to D, the above KRW 200 million should be excluded from the additional collection charge against the Defendant.

3) Unreasonable sentencing (the defendants)

In light of the various sentencing conditions of the instant case, the penalty (Defendant A: Imprisonment with prison labor of 6 years and fine of 210,715,000 won, fine of 210,715,000 won and fine of 210,715,000 won / Defendant B: Imprisonment with prison labor of 2 years and 61,000,000 won, and fine of 61,000,000 won / Defendant C: Imprisonment with prison labor of 1 year and fine of 27,00,000,000 won, and fine of 27,000,000,000 won / Defendant D) are too unreasonable.

B. The Prosecutor (Defendant B and C)

In light of the various sentencing conditions of this case, the above sentence imposed by the court below on Defendant B and C is too uneased and unfair.

2. Ex officio determination on Defendant C

Prior to the judgment on the grounds for appeal against Defendant C and the prosecutor, prior to the judgment on the grounds for appeal against the Defendant C, the prosecutor examined the facts charged against the Defendant C, and the public prosecutor tried to provide good offices in relation to the acceptance of bribe from Defendant C, among the facts charged against the Defendant C, and the facts charged in this part of the facts charged as follows: (a) changed the same contents as the stated facts in the changed criminal facts in the reasoning of the judgment newly admitted to Defendant C; (b) applied for the amendment of an indictment to delete Article 129(1) of the Criminal Act in the appropriate usage method; and (c) changed the subject to the judgment by this court. Accordingly, this part of the judgment was changed, and this part of the judgment was to be sentenced to a single sentence in relation to the remaining facts charged against Defendant C and concurrent crimes under the former part of Article 37 of the Criminal Act, and thus, the judgment against the Defendant C cannot be maintained as it is. (b)

3. Determination

A. As to Defendant B’s assertion of mistake of facts or misapprehension of legal principles

1) Determination on the assertion of business relationship and the absence of a quid pro quo

A) The judgment of the court below

The Defendant argued to the same purport in the lower court as otherwise alleged in this part of the grounds for appeal, and the lower court determined that: (a) the Defendant, at the time of receiving money and valuables from D, was responsible for the chairman of the Special Committee on Budget and Accounts at the time of receiving money and valuables; and (b) the Defendant had broad authority to carry out the autonomous administration of Busan Metropolitan City as a member of the Busan Metropolitan City Urban Planning Committee; and (c) even if the Defendant maintained a friendly relationship with D with D, it is deemed that the Defendant received money on the basis of a dynamic relationship with D and Busan Metropolitan City Council member, the sum of KRW 61,000,000 in total, and KRW 3,00,00 in consideration of the fact that the Defendant had been aware of the fact that the Defendant had been aware of the violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (Evidence No. 1461, 461, 200, 200, 300, 300, 300, etc.).

B) The judgment of this Court

(1) Legal principles

When a public official receives money, valuables, or other benefits from a person subject to his/her duties from a person subject to his/her duties, it shall be deemed that he/she has repaid that he/she received money, valuables, or other benefits from his/her former public official, and in light of the social norms, it is nothing more than that of his/her duties unless there exist special circumstances, such as where he/she can be clearly recognized that an individual relationship is due to the need for school division (see, e.g., Supreme Court Decision 2001Do6721, Jul. 26, 2002). Whether a certain benefit obtained by a public official constitutes a bribe as an unfair benefit in relation to his/her duties, which is due to the need for school division in accordance with the social rules, and whether it is not related to his/her duties shall be determined by taking into account the content of the relevant public official’s duties, the relationship between his/her duties and the provider of benefits, the circumstance and timing of the receipt of benefits, etc. (see, e.g., Supreme Court Decision 2005Do4737).

(2) Specific determination

In light of the above legal principles, the following circumstances acknowledged by the court below's ruling and the court below's lawfully adopted and investigated evidence, i.e., (1) at the time of sale of a building "D" in the election, (2) at the time of the preparation of the implementation project, and (3) at the investigative agency, there was an objective review of the defendant's 'D' purchase price of the land 'D' to the Busan Urban Corporation, and (4) at the time of delivery of the money to the defendant's 10th anniversary of its delivery of the above money to the defendant's 10th anniversary of its delivery of the money to the defendant's delivery of the money to the above 10th court (3rd court's delivery of the money to the defendant's 10th court below's delivery of the money to the defendant's 2th court below's delivery of the money to the defendant's 10th court below's delivery of the money to the defendant's 10th court below's delivery of the money to the defendant's 10th court.

Ultimately, we affirm the above fact-finding and judgment of the court below as just, and there is no error of law by misunderstanding facts or by misapprehending legal principles as pointed out by the defendant.

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

2) Determination on the assertion regarding the number of crimes

A) The judgment of the court below

In light of the following circumstances, the Defendant argued to the effect that this part of the grounds of appeal were the same as the argument in the lower court, and the lower court rejected the Defendant’s assertion on the ground that “The crime under Article 3(b) of the instant Criminal Act, which was committed on September 2, 2015 and 162, shall be deemed a single comprehensive crime,” and this part of the facts charged was decided as a single comprehensive crime, in view of the following circumstances: (a) all the money received by the Defendant was used to appoint a defense counsel in relation to a series of trials regarding the Defendant’s violation of the Public Official Election Act; (b) the time when the bribe was received from September 2014 to October 2014; and (c) the Defendant was aware of the recognition of the business in progress; and (d) it appears that D was giving a bribe as above.”

B) The judgment of this Court

In the case of accepting bribery, where the same kind of crime is repeated for a certain period under the single and continuous criminal intent, and the damage legal interest is the same, each crime shall be deemed an inclusive crime (see, e.g., Supreme Court Decision 2004Do42, Nov. 10, 2005). Examining the evidence adopted by the court below and the trial court in light of the above legal principles, closely comparing the records and the evidence examined, the court below's fact-finding and judgment of the court below that rate each of the above crimes as an inclusive crime are just, and there is no error of law by misunderstanding the facts or misunderstanding the legal principles as pointed out by the defendant.

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

B. As to Defendant A’s assertion on the amount of additional collection charge

The following circumstances acknowledged by the evidence duly adopted and examined by the court below, namely, D received KRW 200 million from the investigative agency to the court below, but it stated to the effect that it was not returned by the defendant to the purport that the defendant returned the bribe, but it was subsequently returned later. Further, D was placed at a situation where it is difficult for the defendant to pay the land price through corporate sound at the time of the payment of KRW 200 million was made difficult, and it was difficult for him to normally proceed with the business. However, prior to that, it is difficult to view that there was a person who was introduced by the defendant in advance to return the down payment to him, and that it was hard to view that the defendant returned the down payment to him again, and that there was a considerable amount of KRW 250 million which the defendant stated that it was a bribe 250 million (the first page of the trial record), in light of the fact that it was returned to the defendant as a bribe at the time of borrowing the above amount of KRW 200 million (the above receipts received by the defendant).

Therefore, the defendant's above assertion is without merit.

C. As to the assertion of unfair sentencing on Defendant A, B, D, and Prosecutor B

1) Defendant A

Examining the various sentencing conditions of this case, the crime of this case is committed against the defendant, such as that the defendant received KRW 210,715,000 in total from D who was promoting the development project of "Paty" in the Dongsan Tourist Complex where the defendant was in charge of the specialized cause of the Busan Urban Corporation, and the amount of bribe received, such as the number of bribe received, the process and method of receipt, etc., and the nature of the crime and the fact that the crime is very poor and serious; the defendant's crime of this case is seriously damaged the fairness in the execution of duties and the confidence of the people who were large to the quality of the non-purchase; and the amount of bribe received is more than 20,000 won.

On the other hand, when the defendant was found to have committed the crime of this case in the first instance, he had a sacrife in depth while making a confession. After accepting a bribe, the defendant seems to have not been going to an illegal wife, and the defendant is deemed to be a public official under the law, not an actual public official, and therefore, the crime of the defendant is different in the nature of the crime from the crime of the public official, the primary crime is the first crime, the social relationship is obvious, and the health status is not good.

As above, considering all the sentencing conditions as shown in the argument of this case, such as Defendant’s appearance, career, character and conduct, environment, family relationship, motive and background of the crime, means, method and consequence of the crime, circumstances after the crime is committed, equity in sentencing with D, etc. Furthermore, the lower court appears to have sentenced Defendant to 6 years of imprisonment and fine 210,715,00 won within the recommended range (five to eight years of imprisonment) set in the sentencing guidelines, taking into account these sentencing conditions equally, and even if there are no special circumstances or changes in circumstances so far as the lower court would change the sentence in the trial, it is acceptable that the lower court’s punishment belongs to the appropriate scope of punishment according to the Defendant’s responsibility, and it cannot be deemed unfair because it is too unreasonable.

Therefore, the defendant's ground of appeal disputing unfair sentencing is without merit.

2) Defendant B

Examining the various sentencing conditions of the instant case, each of the instant crimes appears to be disadvantageous to the Defendant, such as: (a) the Defendant, a business operator of the Busan Metropolitan City Council, such as the development project of the traditional shop in the territory of Busan Metropolitan City; (b) the development project of the business operator of the Sinsan Tourist Complex; (c) the receipt of a bribe of KRW 61,00,000 in total under the pretext of election funds or attorney fees; and (d) the receipt of a bribe by receiving one shop occupant's right of the said branch in the said branch in return for not participating in the progress of the business of the said branch in the said branch; and (b) the receipt of a bribe in light of the number of bribes received and accepted; and (c) the number of bribes received and the process and method of receipt; and (d) the fact that the trust of the general public is damaged in the fairness of performing the duties of public officials in the integrity performance of the public service in the public service society due to the Defendant’s instant crime; and (e) the amount of the bribe received is not less than KRW 60 million.

On the other hand, the facts of each of the crimes of this case themselves are generally recognized as a substitute and they appear to be against their depth, the defendant seems to not proceed to an illegal wife after receiving a bribe, the first offender, the collection charge, the full amount of KRW 61 million, and the defendant's crime of this case is in the concurrent relationship between the crime of violating the Public Official Election Act and the crime of violating the latter part of Article 37 of the Criminal Act, and thus, the equity should be considered in the case of the judgment at the same time, the social relationship is clear, and the health status is not good for the defendant.

As above, considering the defendant's age, career, character and conduct, environment, family relationship, motive and background of the crime, means and method of the crime, and result, the circumstances after the crime, health conditions, and equity in sentencing with D, etc., as well as all of the sentencing conditions as shown in the arguments in this case, such as the defendant's age, career, personality and conduct, family relation, family relation, means and method of the crime, and the sentencing with D, which are disadvantageous to or favorable to the defendant, the lower court appears to have sentenced the defendant to two years and six months of imprisonment and fine, and even if there are no special circumstances or changes in circumstances that make it possible to change the sentence of the lower court in the trial, it is acceptable that the lower court's punishment falls within the proper scope of punishment in accordance with the defendant's liability, and it is not deemed unfair because it is too heavy or unfeasible.

Therefore, the grounds of appeal by the defendant and prosecutor disputing each unfair sentencing are without merit.

3) Defendant D

Examining the various sentencing conditions of this case, each of the crimes of this case is an unfavorable circumstance to the defendant, in light of the motive of the crime, frequency and duration of the crime, the amount of the crime, and the amount of the bribe offered to the defendant in light of the following factors: (a) each of the crimes of this case was provided with money and valuables of KRW 298,715,000 in total to A, B, and C as consideration for the provision of business convenience to high-ranking business operators, such as the development project of the future tradition in the Busan Metropolitan City’s territory, and the development project of the Silsan Tourist Tourist Complex, etc.; and (b) money and valuables of KRW 298,715

On the other hand, the Defendant has no record of being sentenced to more severe punishment than that of the enforcement bond, and each of the crimes of this case is in a concurrent crime under the latter part of Article 37 of the Criminal Act with the crime of violating the Act on Sale of Building Water for which judgment has become final and conclusive, and thus, the equity should be considered when judgment was rendered simultaneously.

As above, considering the defendant's age, career, character and conduct, environment, family relationship, motive and background of the crime, means, method and consequence of the crime, etc., as well as all the sentencing conditions as shown in the arguments in this case, such as the defendant's age, character and conduct, family relation, the motive and circumstance of the crime, the method, method and result of the crime, etc., and considering these sentencing conditions, the court below seems to have sentenced the defendant for a period of one year and six months, and even if there are no special circumstances or changes in circumstances that make it possible to change the sentence of the court below in the trial, it is acceptable that the court below's punishment belongs to the appropriate scope of the punishment according to the defendant's responsibility, and it cannot be deemed unfair because it is too unreasonable.

Therefore, the defendant's ground of appeal disputing unfair sentencing is without merit.

4. Conclusion

As seen above, the part of the judgment of the court below against Defendant C among the judgment below is a ground for ex officio reversal. Thus, without examining the argument of unfair sentencing against Defendant C and the above defendant by the public prosecutor, the judgment of the court below is reversed pursuant to Article 364(2) of the Criminal Procedure Act, and it is decided as follows at every time through the oral argument. Since each appeal by the remaining defendants and the appeal against Defendant B by the public prosecutor is without merit, all of them are dismissed pursuant to Article 3

[Grounds for the judgment to be newly adopted to Defendant C]

Criminal facts and summary of evidence

The summary of the facts constituting a crime and evidence recognized by this court against Defendant C is as follows, and the part of the 2015 High Court Decision No. 4. A. 162 of the 2015 High Court Decision No. 4. 162 of the 2015 High Court Decision No. 4. 162 of the 2015 High Court Decision No. 6006 of the 2016 of the 2011 High Court Decision No. 706 of the 2006

○ Changed criminal facts

A. The point of acceptance of bribe during the year 2013

On February 2, 2013, the Defendant received a bribe in relation to the arrangement of matters belonging to the duties of other public officials by receiving the status of public officials by receiving two million won in cash as a consideration for the removal of illegal buildings constructed on the land on the land on which the two scenic names are not located, from D, to the construction of the captain's office and public officials belonging to the captain's office, etc., by requesting the construction of the captain's office and the removal of the building constructed on the land on the land on which the two scenic names are not located.

Application of Statutes

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

Each Criminal Code (Article 132, 2015, 162, No. 4.b. of the 2015, 162, inclusive of the acceptance of a bribe);

Imprisonment with labor and the concurrent imposition of fines pursuant to Article 2 (2) of the Act on the Aggravated Punishment, etc. of Specific Crimes)

1. Aggravation for concurrent crimes;

Articles 37 (former part), 38 (1) 2 and 3, and 50 of the Criminal Act

162 No. 4.b. Case No. 4. 4.B. Punishment of Acceptance of Bribery

【Limits to the extent of the aggregate of the amounts of two crimes】

1. Discretionary mitigation;

Articles 53, 55(1)3, and 55(1)6 of the Criminal Act (The following extenuating circumstances among the reasons for sentencing):

1. Detention in a workhouse;

Articles 70 and 69(2) of the former Criminal Act (Amended by Act No. 12575, May 14, 2014)

1. Additional collection:

Article 134 of the Criminal Act

1. Order of provisional payment;

Article 334(1) of the Criminal Procedure Act

Reasons for sentencing

The crime of this case is committed by the defendant, who is the head of the agriculture and forestry division of the office of the captain of Busan Metropolitan City, to postpone the removal of illegal buildings within the jurisdiction of the captain of the Gu from D and to the development of the "Smi traditional shop" in Busan Metropolitan City

The fact that a bribe of KRW 27 million is received in total at the request of the captain, the building of the military office, and the public officials belonging thereto for the development of the ‘food transport' within the Madow complex and the receipt of a bribe of KRW 27 million in return for the request of the captain and the public officials belonging thereto, in light of the amount of the bribe received, the nature of the crime and the method of the receipt, and the circumstances of the crime are not less complicated; due to the crime of this case, the integrity of the public service society and the trust of the public officials in general regarding the fairness in the performance of their duties; and the amount of the bribe received is not less than KRW 27 million.

On the other hand, the facts of the crime of this case are generally recognized as a substitute, and the defendant appears to be in a depth reflecting his own character, the defendant seems not to have been going to an illegal wife after receiving a bribe, and there is no other history of punishment for a punishment except for a punishment sentenced to four times a fine for a crime of this case, and the fact that a social relationship is obvious, etc. favorable to the defendant.

As above, the defendant's age, career, character and conduct, environment, family relationship, motive and circumstances of the crime, means, methods and results of the crime, etc., which are disadvantageous or favorable sentencing factors to the defendant, shall be determined like the order, taking into account the various sentencing conditions shown in the arguments in this case, such as the circumstances after the crime, etc.

Gunam-do (Presiding Judge)

Park Do-young

Yellow Inhumanity

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

state only the name.

2) Defendant C’s defense counsel: (a) through the addition and supplement of the grounds for appeal as of November 3, 2015, the Defendant C’s defense counsel stated in the lower judgment.

2) Regarding the crime No. 4. A. of the case, "Defendant C" is a case in the office of the captain who is unrelated to the defendant's duties from D.

Receipt of money and valuables in return for a request to postpone the removal of illegal buildings belonging to the duties of the livestock shed;

Therefore, apart from the crime of acceptance of bribe, the crime of acceptance of bribe cannot be established.

22. The original trial through the summary of the oral argument is against the accused under Article 2(2) of the Act on the Aggravated Punishment, etc. of Specific Crimes.

The defendant was punished by a fine, but the above provisions are "the provisions of Articles 129, 130 or 132 of the Criminal Act".

person who commits a crime under section 129 or 132 of the Criminal Act, that is, only a person who commits a crime under section 129 or 132 of the Criminal Act;

Since the penalty shall be imposed concurrently, the defendant who has violated the "Articles 129 and 132 of the Criminal Code" shall be punished concurrently.

Although there was an assertion of misapprehension of the legal principles to the effect that the fine may not be imposed concurrently under the above provision, the above Section 1 in lieu thereof.

As mentioned above, the indictment was modified to the contents of the inclusion, and so long, the note 2 also changed its premise.

In addition, each of the above arguments by Defendant C’s defense counsel is not judged separately.