[1] The amount of profit (=the amount of profit guaranteed by the obligation to return an advance payment amount) under Article 3 (1) of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes, and where a constructor deceivings a construction mutual aid association and submits a guarantee for advance payment to the person ordering construction

[2] Whether an organization's case or business affairs handled by a person with the external appearance of an employee belonging to the organization constitutes one's own case or business affairs under Article 90 subparagraph 1 of the former Attorney-at-Law Act (negative), and whether a person who received money and valuables on the pretext of a request for a case or business affairs handled by a public official constitutes a crime of violation of the above provision (negative)

[3] The case holding that it constitutes a violation of Article 90 subparagraph 1 of the former Attorney-at-Law Act, where a person who uses the office of the head of a church who does not have a position in the organization of a church itself in the organization of the regular organization receives money from the above church as a solicitation

[4] In a case where money and valuables are received as a solicitation for a case dealt with by a public official for his own benefit, whether the crime of delivering lightnings under the Criminal Code is established in addition to the crime of violating Article 90 subparagraph 1 of the former Attorney-at-Law Act (negative

[1] The amount of profit as stipulated in Article 3 (1) of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes refers to the value of the property or property gains acquired or made by a third party due to the crimes enumerated above, and ultimately, it does not affect whether such gains have been realized or not. If a constructor concludes an advance payment guarantee contract by deceiving a construction mutual aid association under the Framework Act on the Construction Industry and submits it to the ordering person of a construction work after obtaining an advance payment guarantee contract, the property gains acquired by a constructor as a security for the contract of the construction work shall be the amount equivalent to the guarantee amount of the advance payment repayment obligation in principle.

[2] It is reasonable to interpret that the case or affairs handled by a public official under Article 90 subparagraph 1 of the former Attorney-at-Law Act (amended by Act No. 5177 of Dec. 12, 1996) refer to all the cases or affairs of a person other than himself/herself. If the appearance of an employee belonging to an organization is merely a means to facilitate a solicitation of a public official in order to carry out the case or affairs related to the organization, it shall not be deemed that the case or affairs of an organization dealt with by a public official constitutes an offender. In addition, if a public official receives money and valuables on the pretext of solicitation of a case or affairs dealt with by a public official, the crime of violation of the above provision is established immediately, and whether the person who received money and valuables has actually made a solicitation does not affect the establishment of the crime.

[3] The case holding that it constitutes a violation of Article 90 subparagraph 1 of the former Attorney-at-Law Act (amended by Act No. 5177 of Dec. 12, 1996) that a person who uses the office of the head of a church that does not have a position in the organization of the regular organization of a church receives money from the above church as a solicitation for public officials

[4] Unlike the case where a public official received money and valuables to be provided to a public official who is the other party to a solicitation in response to a request for a case or affairs handled by a public official and delivered them merely to that public official, it is established that a crime of violation of Article 90 subparag. 1 of the former Attorney-at-Law Act (amended by Act No. 5177 of Dec. 12, 196) is established, and in such a case, there is no room for establishing a crime of delivering the bribe under Article 133(2) of the Criminal Act.

[1] Article 3 (1) of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes, Article 347 of the Criminal Act / [2] Article 90 subparagraph 1 of the former Attorney-at-Law Act (amended by Act No. 5177 of Dec. 12, 1996) (see Article 111 of the current Act) / [3] Article 90 subparagraph 1 of the former Attorney-at-law Act (amended by Act No. 5177 of Dec. 12, 1996) (see Article 11 of the current Act) / [4] Article 90 subparagraph 1 of the former Attorney-at-Law Act (amended by Act No. 5177 of Dec. 12, 1996) (see Article 11 of the current Act), Article 133 (2) of the Criminal Act

[1] Supreme Court Decision 94Do2132 delivered on August 25, 1995 (Gong1995Ha, 3310), Supreme Court Decision 2000Do137 delivered on April 25, 200 (Gong2000Sang, 1360), Supreme Court Decision 2006Do1614 Delivered on May 26, 2006 (Gong2006Ha, 1224) / [2] Supreme Court Decision 94Do940 Delivered on September 15, 1995 (Gong195Ha, 3467) / [4] Supreme Court Decision 86Do436 delivered on March 25, 1986 (Gong1986, 728)

Defendant 1 and one other

Prosecutor and Defendant

Attorneys Lee Won-won et al.

Seoul High Court Decision 2002No2570, 2003No207, 2005No429 decided July 15, 2005

All appeals are dismissed.

The grounds of appeal are examined.

1. As to Defendant 1’s ground of appeal

A. Determination on the perjury and perjury

In light of the evidence duly admitted by the court below, the court below is just in finding Defendant 1 guilty of all perjury and perjury charges, and there is no violation of the rules of evidence against the rules of evidence as otherwise alleged in the ground of appeal. This part of the ground of appeal is not accepted.

B. Determination on the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud)

(1) According to the evidence duly admitted by the court below, Defendant 1 and the non-indicted 1, the representative director of the company (name omitted of the company), conspired to make and submit a false construction work standard contract which is different from the (name omitted), and deceptions the person in charge of the construction mutual aid association, and (name omitted of the company) concluded an advance payment guarantee contract between the construction mutual aid association and the (name omitted of the company) mutual aid association to guarantee the (name omitted of the company) mutual aid association with the (name omitted) mutual aid association up to 3,80,000 won the obligation to return advance payment to the (name omitted of the company) mutual aid association, and delivered the advance payment bond issued by the construction mutual aid association to the (name omitted) mutual aid association. The court below was just and there is no violation of the rules of evidence as otherwise alleged in the grounds for appeal. This part of the grounds for appeal is not accepted.

(2) The amount of profit under Article 3 (1) of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes refers to the value of the property or property gains which are the object of illegal gains acquired or which has been acquired by a third party due to the criminal acts enumerated above, and ultimately, it does not affect whether such gains have been realized (see Supreme Court Decisions 2006Do1614, May 26, 2006; 2006Do1614, May 26, 2006; 2000Do137, April 25, 2000, etc.). Where a constructor concludes an advance payment guarantee contract by deceiving a construction mutual aid association under the Framework Act on the Construction Industry and submits the advance payment guarantee certificate to the ordering person, the property gains acquired by the constructor shall be the profit which can be used as security for his construction contract, and the amount shall be equivalent to the maximum amount of advance payment obligation guarantee in principle (see, e.g., Supreme Court Decisions 94Do2132, Aug. 25, 2005).

In the same purport, the court below is just in rejecting Defendant 1’s assertion that a corporation’s act of attempted fraud is merely an attempted fraud, inasmuch as it was against Defendant 1’s claim against the Construction Mutual Aid Association for advance payment deposit against the Construction Mutual Aid Association (name omitted) by obtaining a guarantee of advance payment of KRW 3,80,000,000 from the Construction Mutual Aid Association (name omitted), and received the advance payment of KRW 2,90,000,000,000,000,000,000 won as part of the advance payment, and then received the advance payment, and thus, constitutes fraud as to the property interest equivalent to KRW 3,08,00,000,000,000,000,000,000 won was already completed.

2. As to Defendant 2’s grounds of appeal (if the supplemental appellate brief was not timely filed, to the extent it supplements the grounds of appeal)

The former Attorney-at-Law Act (amended by Act No. 5177, Dec. 12, 1996; hereinafter the same applies below) which provides that the case or affairs handled by a public official under Article 90 subparagraph 1 of the former Attorney-at-law shall be interpreted to refer to all the cases or affairs of a person other than himself/herself. If the external appearance of an employee of an organization is merely a means to facilitate the solicitation of a public official in charge for the purpose of dealing with the case or affairs related to the organization, the case or affairs of an organization dealt with by the person with such external appearance shall not be deemed to fall under the case or affairs of the offender (Supreme Court Decision 94Do940, Sept. 15, 1995, etc.). In addition, when a public official receives money and valuables as a solicitation for the case or affairs dealt with by a public official, the crime of the above Article is established immediately, and whether the person who received money and valuables actually made a solicitation does not affect the establishment of the crime.

According to the evidence duly adopted by the court below, as of September 196, when the (name omitted) church was delivered 52 million won to the public official in charge of the Ministry of Education under the pretext of soliciting the public official in charge of the Ministry of Education, Defendant 2 was using the position of the (name omitted) church office for the convenience of solicitation activities against various administrative agencies related to the (name omitted) church relocation and the establishment of the school foundation, and there was no participation in the ordinary operation of the church including the activities of the church (name omitted) church, and there was no position of the office office in the (name omitted) church organization of the (name omitted), and considering the above facts in light of the above legal principles, since Defendant 2 received money under the pretext of soliciting the public official in charge of the Ministry of Education from the (name omitted of the school name omitted), Defendant 2 cannot be exempted from the responsibility for the crime of violation of Article 90 subparagraph 1 of the former Attorney-at-Law, and it does not affect the establishment of the liability of the public official in charge of the Ministry of Education.

Since the court below's application of Article 111 of the current Attorney-at-Law Act to Defendant 2, not Article 90 (1) of the former Attorney-at-Law Act, to which Article 111 of the former Attorney-at-law Act is applied is identical only to the provisions, and both are identical to the elements of a crime or statutory punishment, such mistake does not constitute an unlawful ground for reversal of the judgment (see Supreme Court Decision 91Do2303, Nov. 26, 191, etc.). Unlike the judgment below, it does not constitute a ground for reversal of the judgment, and it does not constitute an unlawful violation of the rules of evidence

3. As to the Prosecutor’s Grounds of Appeal

Unlike the case where a public official receives money and valuables to be provided to a public official who is the other party to a request for a case or affairs handled by a public official and simply delivers them to such public official, the crime of violation of Article 90 subparagraph 1 of the former Attorney-at-Law Act is established as soon, and in such a case, there is no room for establishing the crime of delivering the trusted articles under Article 133 (2) of the Criminal Act (see Supreme Court Decision 86Do436, Mar. 25, 1986, etc.).

According to the records, it is insufficient to prove that Defendant 2 delivered the above money to the public official in charge of the duty of the duty of the duty of the duty of the duty of the duty of the duty of the duty of the duty of the duty of the duty of the duty of the duty of the duty of the duty of the duty of the duty of the duty of the duty of the duty of the duty of the duty of the duty of the duty of the duty of the duty of the duty of the duty of the duty of the duty of the duty of the duty of the duty of the duty of the duty of the duty of the duty of the duty of the duty of the duty of the duty of the duty of the duty of the duty of the duty of the duty of the duty of the duty of the duty of the duty of the duty of the duty of the duty of the duty of the duty of the duty of the duty of the duty of the duty of the duty of the duty of the duty of the tax payment. Rather, the above 30 million won is provided for the duty of the public official in charge of the duty of the duty of the duty of the duty.

In the same purport, the court below is just in holding that the defendants lack of evidence to prove the liability for the crime of transmitting mines under Article 133 (2) of the Criminal Act, and there is no violation of the rules of evidence or misapprehension of the legal principle as otherwise alleged in the ground of appeal. The prosecutor's grounds of appeal are not

4. Conclusion

Therefore, all appeals by the Defendants and the Prosecutor are dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Ill-sook (Presiding Justice)