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

(b) Violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Embezzlement) ;

(c) Occupational embezzlement (name of preliminary crime, occupational breach of trust);

1. A.

2. A. B

3. b. C

4. (b) D.

5. (c) E;

6.(c)F

Prosecutor (as to Defendant C, D, E, and F) and Defendant A, B

Cho Jae-in (prosecutions and public trials) and public trials (public trials)

Law Firm G, Attorney H (Defendant A)

Law Firm BM, Attorney BN (Defendant A)

Law Firm I, Attorneys BO (Defendant B)

Law Firm BP, Attorney B Q (Defendant B)

Attorney K (Defendant C, Defendant D)

Attorney M (Defendant E, F)

Seoul Western District Court Decision 2013Gohap41 Decided July 26, 2013

February 7, 2014

[Defendant A]

The defendant's appeal is dismissed.

[Defendant B]

The defendant's appeal is dismissed.

[Defendant C]

The judgment of the court below is reversed.

The defendant shall be innocent.

[Defendant D]

The judgment of the court below is reversed.

The defendant shall be innocent.

[Defendant E]

The judgment of the court below is reversed.

The defendant shall be innocent.

[Defendant F]

The judgment of the court below is reversed.

The defendant shall be innocent.

1. Summary of grounds for appeal;

(a) A prosecutor;

According to the evidence submitted by the prosecutor, ① Defendant C and D conspired to embezzled KRW 500 million in total amount to KRW 500 million in connection with the Q area redevelopment project from Defendant C and D, and ② Defendant E and F conspired to make it possible for them to obtain the construction right, “AB” and “AB” to conclude a false service contract for KRW 300 million in amount with AB, a dormant corporation designated by B upon receipt of the proposal, and AC (hereinafter “AC”), a false service contract for the amount of KRW 200 million in the name of B to AB, and the lower court determined that the Defendants were not guilty of the amount of KRW 300 million in total amount to KRW 200 million in the amount of funds in their occupational custody, and that Defendant E and F conspired to make it possible for them to receive KRW 450 million in connection with the redevelopment project of the R area and to receive KRW 300 million in advance from the Committee of Promotion to make up for the amount of KRW 300 million in advance.

B. Defendant A

The punishment sentenced by the court below (the penalty of one year, six months, and three hundred million won) is too unreasonable.

C. Defendant B

1) Legal principles

The Defendant provided that the employees in charge of Y and AD would be able to select KRW 500 million from Y to Y and AD as a contractor for the preservation of the expenses incurred in relation to the Q zone redevelopment project and the R zone redevelopment project. The Defendant received KRW 300 million from Y and AD. The expenses to be invested in relation to the respective zones redevelopment project include expenses to be incurred in the process of obtaining approval from A, which was the head of O at that time, and the Defendant actually paid KRW 300 million from Y and AD out of the total amount of KRW 80 million to Y and AD. As such, the Defendant paid the above KRW 300 million to A according to the purport that Y and AD was actually provided, the lower court erred by misapprehending the legal doctrine, thereby imposing an additional collection of KRW 800 million from the Defendant.

2) Unreasonable sentencing

The punishment sentenced by the court below (the penalty of 3 years of imprisonment, 80 million won) is too unreasonable.

2. Ex officio determination

Prior to the judgment on each of the above reasons for appeal by the prosecutor and the defendants, the second part of Section 4 of the original charges was reported by the defendant Eul who is his subordinate employee at around that time, and the result of the order was received by the defendant Eul to a corporation designated by the public official, which is deemed as the public official at the time, set the amount of KRW 50 million in the form of false order for services and report it to the head of the headquarters with authority to execute the funds." The first part of Section 5 of the charges was first set by the defendant Eul from May 2005 to December 2, 2005 to Section 3 of Article 5 of the Act on the AD, Section 5 of the Act on the AD, Section 3 of the Act on the AD, Section 5 of the Act on the AD, Section 3 of the Act on the AD's AD's Additional Act on the AD's Additional Act No. 6 of the Act on the AD's Additional Act No. 3 of the Act on the AD's Additional Act on the AD's Additional Act.

3. Determination on the grounds of appeal by Defendant A and B

A. As to Defendant B’s assertion of misapprehension of the legal principle

1) Even if the Defendant again granted the money received as a bribe to another person after the acceptance of the bribe, the subject of the acceptance of the bribe is merely a method of consuming the money received by the Defendant and granted the money to another person. As such, the Defendant’s collection of all the amount of the acceptance of the bribe should be made from the Defendant (see, e.g., Supreme Court Decision 86Do1951, Nov. 25, 1986).

2) In light of the facts found by evidence duly adopted and investigated by the court below and the trial court, the following circumstances are revealed: ① Defendant B was offered to the employees in charge of Qan area redevelopment project, namely, to have the right to execute construction upon preserving the cost invested in Qan area redevelopment project; ② there was no expression that Defendant B would deliver a bribe to Defendant A and other public officials; ② Defendant B offered that the employees in charge of AD, such as Defendant F, will be able to secure the right to execute construction upon preserving the cost invested in connection with AD area redevelopment project; ③ there was no statement that Defendant B would deliver a bribe from AD to the public officials including Defendant B; ③ Defendant C, D, etc. and employees in charge of AD such as Defendant E and F, etc. were not expected to have been delivered a bribe to Defendant B, and thus, Defendant B did not receive some of the money and valuables from Defendant B as a bribe from Defendant B and there was no reason to accept the bribe from Defendant B to Defendant B as a total amount of money and valuables received from Defendant B, and thus, Defendant B did not have received a bribe from Defendant B and other public officials.

B. As to Defendant A and B’s assertion of unreasonable sentencing

1) Defendant A

A sentence should be imposed in consideration of equity with the case of concurrent crimes under the latter part of Article 37 of the Criminal Act, including the crime of violation of the Act on the Aggravated Punishment, etc. of Specific Crimes, etc. (Bribery) for which the judgment has become final and conclusive, the defendant has no particular criminal record except for the crime of this case and the crime of violation of the above Act on the Aggravated Punishment, etc. of Specific Crimes (Bribery), the health of the defendant and his/her family members is good, and there is financial difficulties, and the defendant has an exemplary life, such as making vocational incentives by gathering vocational incentives that he/she received through work in prison near about four years, and making donations for crime victims, etc.

On the other hand, the crime of this case is committed in relation to redevelopment while the defendant serves as the head of a local government, and the nature of the crime is serious, and the non-purchase and integrity of official duties are severely damaged due to the crime of this case, and the amount of bribe received by the defendant is large to KRW 300 million, etc., which are disadvantageous to the defendant. In full view of the defendant's age, character and conduct, environment, circumstances of the crime of this case, circumstances after the crime of this case, and all other circumstances revealed in the argument of this case, it cannot be deemed that the above punishment imposed by the court below for voluntary mitigation, concurrent mitigation, and discretionary mitigation is too unreasonable.

2) Defendant B

The fact that the defendant led to the confession of the crime of this case, the defendant voluntarily surrenders and actively cooperate in the investigation, the defendant is merely a public official who temporarily acquired the status of a public official in relation to redevelopment project, the defendant appears to have caused the crime of this case in order to be compensated for the expenses invested in order to be selected as a maintenance business. The crime of this case is in the concurrent relation between the crime of giving property in breach of trust and the crime of giving property in breach of trust for which the judgment has already become final and conclusive and the latter part of Article 37 of the Criminal Act, and the fact that the defendant's health is not good and is faced with economic difficulties are favorable to the defendant.

On the other hand, the crime of this case is a representative director of the maintenance service company that requires a high level of integrity and receives a large amount of bribe in violation of his duty, and the nature of the crime is serious. The fairness in the performance of duty by the urban maintenance service provider and the social trust therein is significantly damaged, and the amount of bribe received by the defendant is a large amount of KRW 800 million, etc., which are disadvantageous to the defendant. In full view of the defendant's age, character and behavior, environment, background of the crime of this case, circumstances after the crime, and all other circumstances shown in the argument of this case, it is not unreasonable that the court below's sentence imposed by the defendant for voluntary mitigation and discretionary mitigation is too unreasonable.

4. Conclusion

Therefore, the part of the judgment of the court below regarding Defendant C, D, E, and F is reversed pursuant to Article 364(2) of the Criminal Procedure Act, and the part of the judgment of the court below against the above Defendants is reversed, and it is so decided as follows. Since there are no grounds for appeal by Defendant A and B, it is dismissed in its entirety pursuant to Article 364(4) of the Criminal Procedure Act. It is so decided as per Disposition.

[Defendant C, D, E, F]

1. Judgment on the primary facts charged

A. Summary of the facts charged

1) Occupational embezzlement by Defendant C and D

around 2006, Defendant C was in charge of receiving orders and implementing funds relating to redevelopment as a regular manager of the Y Housing Project Headquarters. Defendant D, as the head of the Y Housing Project Headquarters, supported Defendant C as the head of the 2 team at the Y Housing Project Headquarters around 2006, and was in charge of receiving orders and executing funds at the site of redevelopment in the Seoul Southernbuk area.

Defendant D was proposed that, around January 2006, Co-defendant B, a representative director, who was performing the project to improve the Q district redevelopment area in the AA hotel coffee shop located in Jung-gu Seoul Metropolitan Government, invested KRW 3.4 billion in relation to the Q district redevelopment project, and there still remains an important authorization in the future, so that the construction right can be secured on the face of KRW 500 million.

Defendant C received a report on the requirements of Co-Defendant D, a subordinate employee, and received orders from Co-Defendant D in order to achieve the performance of orders, and ordered false services to a corporation designated by the above B, which is deemed as a public official, and reported to the head of the headquarters with authority to execute funds to pay the amount of KRW 500 million. Accordingly, Defendant C, who obtained permission from Defendant C, stated that “The amount of KRW 500 million will be paid in return for securing the construction right” to Co-Defendant B at the same place, and that “The money will be paid in the form of ordering services after securing the status of the redevelopment right of Qgu area.”

After that, on March 2, 2006, Y was selected as the redevelopment construction works by the residents' general meeting of the Q zone, Y entered into a false service contract with AB and 300 million won in the Y office located in the Jung-gu Seoul Metropolitan Government, and AC and 200 million won in price, respectively.

Defendant C and D remitted KRW 500 million to AC account designated by Co-Defendant B, and KRW 300 million to AB account, respectively, among the Y’s funds kept for business on March 24, 2006.

Accordingly, Defendant C and D embezzled the amount of KRW 500 million for corporate funds owned by Y with intent to give a bribe in collusion with the above AM.

2) Occupational embezzlements by Defendant E and F

Defendant E as the head of the AD Housing Headquarters Development Team at around 2006, was in charge of receiving orders and executing funds at the redevelopment site in the Seoul Western area. Defendant F, as the head of the AD Housing Headquarters Development Team at around 2006, supported Defendant E and took charge of receiving orders at the redevelopment site in Seoul Western area and executing related funds.

From May 2005 to December 2005, Defendant E received from Defendant F, a vice head of AD Project Development Team, a vice head of AD project development team, from time to time, on the current status of the R zone redevelopment promotion. Defendant E received a report from the P representative Co-Defendant B, a P Co-Defendant B, who was performing the project of the said zone at the time, provided money to the P Co-Defendant B, a corporation for the maintenance of AD project, and decided to pay money to the above B, who is deemed a public official, after being selected as a contractor for the performance of the project, and reported to the AO with the authority to execute the project. Accordingly, Defendant F requested Defendant B, at the main office near Seoul AE, to help AD to be selected as a contractor in the R zone at around January 2006, and, at that place, Co-Defendant (Defendant C) provided that “The Committee would have been selected as AD if the cost invested in the R zone redevelopment project was preserved in KRW 4,500,000.”

After that, with the permission of Defendant E, Defendant F gave KRW 300 million in return for assisting AD to be selected as a contractor in the R zone, and written false service contract and agreed with Co-Defendant F to give money in the form of payment.

On March 23, 2006, Defendant F was selected as the redevelopment works of the R zone, and entered into a false service contract between Defendant F and AH with Co-Defendant B at the AD office located in the Jung-gu Seoul Metropolitan Government around March 2006 and April 2, 2006.

Defendant E and F remitted KRW 300 million out of the AD funds which were in custody from May 24, 2006 to September 11, 2006, to the AH account designated by Defendant B.

Accordingly, Defendant E and F embezzled 300 million won of corporate funds owned by AD for the purpose of giving bribe in collusion with the above AO.

B. Determination

1) In light of the facts found by the evidence duly adopted and investigated by the court below and the court below, the amount of KRW 500 million paid to Co-Defendant B was paid from the corporate account managed by the Y Fund Team. The regulation on the receipt and disbursement of money in the Y Corporation Account provides that the person in charge of receipt and disbursement of funds in the Y Corporation Account is the director of the Treasury, the fund team, or the fund team leader. ② there is no evidence to acknowledge that Defendant C, D, and the above AM keep the corporation account funds. ③ The prosecutor claims that Defendant C and D are the custodian of the Y Fund. However, although Defendant C and D did not have the authority to independently conclude the service contract in the case of this case exceeding KRW 50,000,000,000, without the approval of AM, the head of the headquarters, and ④ Even if the above AM has independent right to conclude the service contract in this case, it cannot be viewed that the above AM did not have the authority to request the above funds separately from the Y Fund.

2) Also, in light of the facts found by the evidence duly admitted and investigated by the court below and the trial court, the following circumstances are revealed: ① KRW 300 million of the AD funds paid to Co-defendant B in the corporate account managed by the AD Fund Team; ② there is no evidence to acknowledge that the AD Fund custodian is the fund team manager; ② there is no evidence to acknowledge that Defendant E, F, and the above AD Fund keep the funds of the AD Corporation; ③ Defendant E, F, and the public prosecutor are entitled to enter into a service contract under the name of AD; but Defendant E and F did not have the authority to independently conclude the service contract of this case without the approval of the AO regular director, who is the officer in charge of the AD Fund; ④ Even if the above AO has the right to independently conclude the service contract of this case, it is merely a right to demand disbursement to the custodian of the AD Fund, and the execution of the contract can not be deemed to have been separated from its status and authority to dispose of the funds to the AD Fund, and the evidence presented by the prosecutor cannot be viewed as the above AD and the 500.

3) Therefore, as long as the identity of the Defendants, the said AM, and the AO cannot be recognized as the subject of embezzlement, this part of the facts charged does not need to be examined, and there is no proof.

2. Judgment on the ancillary facts charged

A. Summary of the facts charged

It is as shown in the attached preliminary charges.

B. Determination

1) Whether property damage has occurred or not

A) The crime of occupational breach of trust under Article 355(2) of the Criminal Act or Article 356 of the Criminal Act is established when the crime of occupational breach of trust is committed in violation of one’s duty and thereby causing damage to the principal. In this case, the term “property damage to the principal” refers to not only the principal’s actual value is reduced, but also the risk of property damage to the principal’s actual value. In addition, the existence of property damage should be grasped from an economic point of view, instead of legal judgment, unless there are special circumstances, such as where a contract entered into in the name of the company by the representative director is in violation of the relevant Acts and subordinate statutes or the articles of incorporation, and thus, where there is no legal effect, such act alone cannot be deemed as causing actual damage to the company or causing actual damage to the property (see, e.g., Supreme Court Decision 200Do1394, Nov. 24, 201).

B) The following circumstances revealed by the evidence duly adopted and examined by the court below and the trial court, namely, ① the relationship with the situation of dissolution of BR in the early 2000s, with the damage of corporate image, and with the very low-cost performance in redevelopment and reconstruction projects, ② In fact, Y could have gained enormous profits through the redevelopment projects in this case, and as a result, Y could have been selected as a contractor in many redevelopment projects from around 2006. ③ In light of the above circumstances, the promotional expenses for the redevelopment projects in the early 200 billion won amount, and the promotional expenses for the redevelopment projects in the early 200, were reduced as a result of the payment of the above funds to Defendant C, D, and D, ④ Defendant C, at the beginning and before the redevelopment projects in this case, did not have to pay the above KRW 500,000,000,000 from the point of view that evidence was actually paid to the above redevelopment projects in the view of the lack of economic benefits.

C) In addition, the following circumstances revealed by evidence duly adopted and examined by the court below and the trial court: ① large-scale construction companies participated in the redevelopment project of the R zone located near Seoul Central District; ② AD has predicted the net operating profit of the above redevelopment project to be more than 14.5 billion won; ③ in the case of AD, the total amount of 1.5% or 2% of the value of the shares to be selected as the contractor was reduced; ④ Defendant E and F agreed to pay the above KRW 300 million on the condition that the R zone redevelopment project was selected as the contractor of the R zone redevelopment project; ② AD actually made a false contract to provide the service contract of this case; ③ there were substantial profits; ③ in the case of AD, the total amount of 1.5% or 2% of the value of the shares to be selected as the contractor; ③ The above payment of the promotion expenses was reduced by Defendant E and F; ④ The above 300 million won was not considered to be the economic profits of the AD project, and evidence was not sufficient to acknowledge the price of the AD project.

2) Whether the Defendants had the intent to commit occupational breach of trust

A) In order to establish a crime of occupational breach of trust, the perception of occupational breach of trust as a subjective element and thereby, awareness that one or a third party acquires his or her benefit and causes loss to the principal, namely, intent to commit occupational breach of trust (see, e.g., Supreme Court Decision 9Do338, Dec. 8, 2000).

B) In the instant case, the following circumstances revealed in light of the facts acknowledged by evidence duly adopted and investigated by the lower court and the trial court, i.e., (i) Defendant C and D paid the above KRW 500 million to B with the approval of AM which was authorized to conclude the instant false service contract; (ii) Defendant E and F paid the above KRW 300 million to B with the approval of AO which was authorized to conclude the instant false service contract; and (iii) there is no evidence to deem that Defendant C, D, E, and F received personnel preference in relation to the selection of each of the above projects; and (iii) Defendant C retired from Y on December 31, 206; and (iii) Defendant E and F refused the demand of B (4.5 billion won) with respect to the amount of bribe to be paid to B and paid the above KRW 300 million through negotiations; and there is no evidence to acknowledge that each of the above Defendants was an intentional bribe at the time of breach of trust.

3) Sub-decisions

Therefore, as long as property damage, which is a constituent element of the crime of occupational breach of trust, occurs and the Defendants’ intention cannot be acknowledged, this part of the facts charged does not require proof.

3. Conclusion

Thus, all of the facts charged around the instant case and the ancillary facts charged constitute a case where there is no proof, and the Defendants are acquitted under the latter part of Article 325 of the Criminal Procedure Act.

Judge Do charter of judge

Judges fixed-term

Judges Lee Jong-soo