Defendant

Defendant

Lee Jong-il (Court) (Court of Second Instance), Kim Tae-tae (Court of Justice)

Law Firm Dong-ho et al.

Daejeon District Court Decision 2012Gohap81 Decided September 7, 2012

The judgment of the court below is reversed.

A defendant shall be punished by imprisonment for two years.

Of the facts charged in the instant case, the charge of violating the Aggravated Punishment, etc. of Specific Crimes (Bribery) and bribery is acquitted.

The summary of the judgment of innocence against the defendant shall be published.

1. Summary of grounds for appeal;

A. misunderstanding of facts or misunderstanding of legal principles

1) As to the facts charged of occupational embezzlement

Although the Defendant used promissory notes in custody for “Nonindicted 4 Partnership” (hereinafter “the instant partnership”) and received KRW 78 million as salary, it cannot be deemed embezzlement since the Defendant lawfully received benefits while working as a business management director and the head of the instant association. As such, insofar as the Defendant believed that he/she was legally able to receive benefits, it cannot be deemed that there was an intent to acquire unlawful profits by the Defendant.

2) As to the violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (Bribery) and the charge of bribery

(1) The association of this case is not established under the Urban Development Act, and therefore the provision that the crime of bribery is deemed a public official cannot be applied to the defendant.

② Although the Defendant received KRW 50 million from Co-defendant 2 of the first instance trial (Supreme Court Decision 2) and KRW 5 million from Nonindicted 5, the Defendant merely borrowed from the partnership operation expenses, etc., it does not constitute a bribe.

B. Unreasonable sentencing

The sentencing of the court below (limited to four years of imprisonment and fine of 110 million won) is too unreasonable.

2. Determination of misconception of facts or misapprehension of legal principles as to the facts charged of occupational embezzlement

In the court below's argument identical to this part of the grounds for appeal, the court below rejected the above argument by stating in detail the defendant's assertion and its decision under the title "the judgment on the defendant's and his defense counsel's assertion". In comparison with the above judgment of the court below, the judgment of the court below is just and there is no error of law of misunderstanding of facts or misunderstanding of legal principles. Therefore,

3. Determination of misconception of facts or misapprehension of legal principles as to the charges of bribery and violation of the Act on the Aggravated Punishment, etc. of Specific Crimes

A. Summary of this part of the facts charged

As the president of the instant association established pursuant to the Urban Development Act, the Defendant received a bribe of KRW 50 million in total from Co-Defendant 2 on five occasions on February 11, 2010, KRW 20 million on a check of KRW 10 million on or around March 18, 2010, KRW 10 million on or around March 23, 2010, KRW 5 million on or around May 18, 2010, and KRW 50 million on or around June 15, 2010, and received a bribe of KRW 50 million on or around June 5, 201, and KRW 5 million on or around June 5, 2010.

B. The judgment of the court below

In light of the circumstances leading up to the establishment of the instant association and the process of amending the articles of incorporation, in particular, the Cheongyang-gun, the competent authority on September 2, 2004, which obtained approval to amend the articles of incorporation pursuant to Article 13 of the Urban Development Act (the lower court judgment 10-11), the lower court found the Defendant guilty of all the charges on this part on the premise that the instant association constitutes a partnership established pursuant to the Urban Development Act.

C. Judgment of the court below

1) The limit to the application of “the provision on the legal fiction of public officials” under the Urban Development Act

A) The purpose of the Urban Development Act is to promote planned and systematic urban development, create a pleasant urban environment and promote public welfare by prescribing matters necessary for urban development, and contribute to the promotion of urban development. An urban development project cooperative is an organization established for the above purpose of project as above, and its officers and employees require integrity to the extent that public officials are put in demand for the purchase of duties, and in the Urban Development Act, where the amount of money and valuables in relation to their duties has been reduced, it guarantees the fairness in the normal operation of urban development projects and the business of the cooperative by seriously punishing them as public officials (see Supreme Court Decision 9Do5753, Jan. 19, 2001).

B) In light of the legislative intent of the provision that regards the executives and employees of a cooperative as public officials in the application of bribery under the Criminal Act, it is reasonable to interpret that the provision on the legal fiction of public officials in the application of the penal provisions under the Urban Development Act (the previous Act before it was repealed by the enactment of the National Land Planning and Utilization Act, Act No. 6655, Feb. 4, 2002) is limited to the executives and employees of a cooperative established with land owners in the Act on the Utilization and Management of the National Territory (the urban development district under the Urban Development Act or the urban planning district under the Urban Planning Act) as the members of the land owners in the Act on the Utilization and Management of the National Land, which is not the urban area under the Act on the Management and Utilization of the National Territory, and to interpret that the provision on the legal fiction of public officials in the application of the penal provisions applies to the executives and employees of a cooperative established with the land owners in the "quasi urban area" rather than the "urban area"

(ii) the facts of recognition

In full view of the evidence duly adopted and examined by the court below and the fact-finding results of this court, the following facts can be recognized.

A) On October 22, 1994, hot spring was discovered near Cheongyang-gun (hereinafter omitted) in 1979, and a hot spring area of 533,550 square meters near it was designated as a hot spring district. With respect to 130,480 square meters in its neighboring area around October 5, 1995, a development plan was approved pursuant to Article 24 of the Tourism Promotion Act around January 6, 1996.

B) The 80 landowners in the vicinity of the above hot spring obtained permission for the tourist resort creation project from the Cheongyang-gun on June 27, 1996 pursuant to the provisions of Article 25(3) of the Tourism Promotion Act and Article 2 of the Ordinance on the Delegation of Duties of Chungcheongnam-do. In order to establish the association and promote the said tourist resort creation project by the method of a land readjustment project, on November 21, 1998, Article 14-2(1)2 of the Act on the Utilization and Management of the National Territory, Article 11(6)2 of the Enforcement Decree of the Act on the Utilization and Management of the National Territory, Articles 2, 4 through 6, 7(1) and (2), 9 through 34, 36 through 82 of the Land Readjustment and Rearrangement Projects Act, Article 32 of the Civil Act, etc., and completed the registration of incorporation of the association "non-party 4", the association of this case, the association of this case.

C) Meanwhile, the instant association opened a general meeting on June 2, 2004 and replaced by the Urban Development Act because the Land Partition Act, which forms the basis of the “Development Regulations”, which is the previous articles of association of the association, was repealed on June 30, 200, and replaced by the Urban Development Act. ② The said “Development Regulations” requires supplementation for lack of necessary matters under the law, such as omission of necessary matters, and ③ the previous “Development Regulations” requires modification of the articles of association (i.e., the general meeting minutes (11-2 pages) from among the fact-finding and delivery entrustment documents, (ii) the board of directors’ minutes (see, e.g., the amendment of the articles of association), (iii) the amendment of the articles of association’s articles of association (see, e., Supreme Court Decision 11-2), (iv) and (v) of the Enforcement Decree of the Urban Development Act, and (v) the amendment of the articles of incorporation and operation of a public-service corporation to the head of the Cheongyang on June 25, 20004.

3) Whether the provision on the legal fiction of public official applies in the instant case

A) In full view of the above relevant legal principles and the contents of the relevant laws and regulations and the above facts, the instant association, at the time of its establishment on November 1, 1998, is not a “Land Partitioning Association” (see Article 6 of the Act on the Readjustment of Land and Rearrangement Projects, especially Article 20(1) of the Enforcement Decree of the Act on the Utilization and Management of the National Territory (Article 20(1)), which promotes the compartmentalization and rearrangement project within the “Urban Area” (Article 23 of the Tourism Promotion Act) but not a “Land Partitioning Association” in the name of the association (Article 20(1) of the Act on the Utilization and Management of the National Territory (Article 13-3(1) of the Act on the Utilization and Management of the National Territory). In this case, it is clear that Article 8(3) of the Enforcement Decree of the Act on the Readjustment and Rearrangement of Land, which is a related Act and subordinate statutes, shall not apply mutatis mutandis to the instant association.

B) Meanwhile, the association of this case obtained permission to amend its articles of incorporation from the Cheongyang-gun on September 2, 2004 pursuant to Article 13(2) of the Urban Development Act (the original judgment is based on the provision on the legal fiction of public officials when applying the penal provisions under Article 84 of the Urban Development Act to the association of this case). Even if there are such circumstances, considering the aforementioned legal principles and the contents of the relevant Acts and subordinate statutes and the above facts of recognition, when considering the Urban Development Act was enacted and enforced from July 1, 200 and the previous land readjustment project was abolished, but the association of this case is still not subject to the Urban Development Act's "urban Development Association" (see Articles 11(1)4 and 13(1) of the Urban Development Act's "Urban Development Act" under the Act on the Utilization and Management of the National Territory, and it is clear that the provisions of Article 8(2)4 of the former Urban Development Act's "Act" under Article 24(2) of the Urban Development Act's "Act" (the provisions of this case are applied mutatis mutandis).

C) Ultimately, the evidence submitted by the prosecutor alone is not sufficient to recognize that the instant union constitutes a cooperative to which Article 83 of the former Land Readjustment Project Act or Article 84 of the current Urban Development Act applies, which is a public official provision in the application of penal provisions, and there is no other evidence to acknowledge this differently. Thus, this part of the facts charged does not constitute innocence without examining the remainder of the Defendant’s assertion of mistake of facts or misapprehension of legal principles. Therefore, the judgment of the court below which found the Defendant guilty of this part of the facts charged

4. Conclusion

The defendant's grounds for appeal can no longer maintain the judgment of the court below on the grounds that the defendant's grounds for appeal can no longer be affirmed, and the judgment of the court below is reversed pursuant to Article 364 (6) of the Criminal Procedure Act without examining the defendant's grounds

Since the judgment of the court below is the same as the statement in Article 1-1 (a) of the facts of crime and the corresponding "a summary of evidence", it shall be quoted as it is in accordance with Article 369 of the Criminal Procedure Act.

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

inclusive, Articles 356 and 355(1) of the Criminal Act (the point of occupational embezzlement and the choice of imprisonment)

1. In light of the fact that the amount of damage caused by occupational embezzlement of this case is not less than 228 million won in total, and that the defendant denies his criminal act and did not recover any damage to partnership or union members, the defendant cannot be held strictly liable for the defendant, and the sentence of punishment is inevitable.

2. Meanwhile, there are extenuating circumstances such as the Defendant’s age, family relations, circumstances leading up to crimes, and circumstances after committing the instant case’s pleading, which are the head of the instant association, and considerable number of union members seek the Defendant’s prior action against the Defendant, and the Defendant does not have to be sentenced to the previous conviction and sentence. In addition, the Defendant’s punishment as ordered shall be determined by taking into account all of the sentencing conditions indicated in the instant pleadings, such as the Defendant’s age,

The summary of this part of the facts charged is the same as the above 3.A. As seen in the above 3.C., since there is no proof of crime, it constitutes a case where there is no proof of crime, the defendant is acquitted pursuant to the latter part of Article 325 of the Criminal Procedure Act, and the summary of the judgment of innocence in this part is announced in accordance with Article 58

[Attachment Form 5]

Judges Sung Sung-kun (Presiding Judge)