Where a management entity specialized in improvement projects is a stock company under the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents, whether an “executive officer” of a management entity specialized in improvement projects, who is deemed a public official under Article 84 of the same Act, is limited to a representative director, director, or auditor registered in the commercial register at the time of accepting the bribery (affirmative), and whether the actual manager not registered as an executive officer of a stock

Article 84 of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (amended by Act No. 944 of Feb. 6, 2009; hereinafter “Urban Improvement Act”) provides that “In applying Articles 129 through 132 of the Criminal Act, executives and employees of associations (in cases of a corporation, referring to executives and employees) and management entities specialized in improvement projects shall be deemed public officials.” However, where a management entity specialized in improvement projects is a corporation, there is no more detailed provision regarding “executive” deemed public officials. Therefore, whether an “executive” is determined by the Civil Act, the Commercial Act, and other substantive laws. Article 312 of the Commercial Act, which regulates the legal relationship of a corporation, provides that “the appointment of directors and auditors shall be made at an inaugural general meeting,” and Article 317(2) of the former Commercial Act (amended by Act No. 8581 of Aug. 3, 2007) provides that “the name and address of a director or an auditor deemed public official of a management entity specialized in improvement projects,” as prescribed in the Criminal Act, shall be construed as “the name and address of a company.”

Article 12(1) of the Constitution of the Republic of Korea; Articles 1(1) and 129 of the Criminal Act; Article 84 of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (Amended by Act No. 9444, Feb. 6, 2009); Article 317(2)8 of the former Commercial Act (Amended by Act No. 9362, Jan. 30, 2009); Article 317(2)9 of the former Commercial Act (Amended by Act No. 10600, Apr. 14, 201); Article 312 of the Commercial Act

Defendant 1 and one other

Defendant 2 and Prosecutor

Attorneys Cho Jong-sik et al.

Gwangju High Court Decision 2013No7 decided July 25, 2013

The part of the judgment of the court below against Defendant 2 is reversed, and that part of the case is remanded to the Gwangju High Court. The prosecutor's appeal on the acquittal part is dismissed in its entirety.

The grounds of appeal are examined.

1. As to Defendant 2’s ground of appeal

A. As to the first ground for appeal

According to the records, Defendant 2 is aware of the facts that Defendant 2 was served with a copy of the indictment on February 10, 2012, along with a certificate of intention to a participatory trial. Defendant 2 did not want a participatory trial unless Defendant 2 did submit a document stating his/her intent to want a participatory trial within the statutory period. Thus, Defendant 2 did not err in the misapprehension of the law that Defendant 2 did not participate in a participatory trial.

B. Regarding ground of appeal No. 2

(1) Article 84 of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (amended by Act No. 9444 of Feb. 6, 2009; hereinafter “Urban Improvement Act”) provides that “In applying Articles 129 through 132 of the Criminal Act, executives and employees of a cooperative and a management entity specialized in improvement projects (in cases of a corporation, referring to executives and employees) shall be deemed public officials.” However, where a management entity specialized in improvement projects is a corporation, the Urban Improvement Act does not provide any more detailed provision as to “executive” deemed public officials. Therefore, whether an “executive” is determined by the Civil Act, the Commercial Act, and other substantive laws, and Article 312 of the Commercial Act, which regulates the legal relationship of a corporation, provides that “the director and an inaugural general meeting shall be appointed under the title “the appointment of an executive”, and Article 317(2) and (8) of the former Commercial Act (amended by Act No. 8581 of Aug. 3, 2007) provides that “the name and address of the director” (name).

In full view of the language, structure, purport, etc. of the above provisions, where a management entity specialized in improvement projects, which is deemed a public official under Article 84 of the Act, is a stock company, the “executive officer” deemed a public official under Article 84 of the same Act shall be deemed to be limited to a person registered as a representative director, director, or auditor in the commercial register at the time of the acceptance of bribery corresponding to Articles 129 through 132 of the Criminal Act. Even if a real manager is a corporation, if a person who has not been registered as an executive of the relevant corporation falls under the “executive officer” of a management entity specialized in improvement projects, who is deemed a public official under Article 84 of the Act, even if he/she is a public official,

(2) According to the reasoning of the judgment below, the court below affirmed the judgment of the court of first instance that found Defendant 2 guilty of violating the former Act on the Aggravated Punishment, etc. of Specific Crimes (Bribery) as being an officer or employee of the management entity specialized in improvement projects deemed public officials pursuant to Article 84 of the Act on the Aggravated Punishment, etc. of Specific Crimes (amended by Act No. 9169 of Dec. 26, 2008; hereinafter the same) and Article 129(1) of the Criminal Act, on the following grounds: (a) comprehensively taking into account the circumstances as indicated in its reasoning, Defendant 2 actually engaged in the rebuilding business of the non-indicted corporation (hereinafter “non-indicted corporation”) and who is an officer or employee of the management entity specialized in improvement projects deemed public officials pursuant

However, the facts that Defendant 2 did not have been registered as the representative director, director, or auditor of the Nonindicted Company at the time of receiving money as stated in this part of the facts charged are clear in records. Even according to the facts acknowledged by the lower court, Defendant 2 is merely a person who actually implements the project for improving the reconstruction association of the Nonindicted Company, and cannot be deemed as having been subject to specific direction and supervision from the Nonindicted Company. Therefore, it is difficult to view that Defendant 2 falls under “employee” as stipulated in Article 84 of the Urban Improvement Act.

Examining the above facts in light of the legal principles as seen earlier, Defendant 2 cannot be seen as an “executive” of a management entity specialized in improvement projects as stipulated in Article 84 of the Act on the Aggravated Punishment, etc. of Specific Crimes or an “employee” at the time of receiving money as indicated in the facts charged. Thus, Defendant 2 cannot be deemed as a “public official” who is the subject of the acceptance of bribe under Articles 2(1)1 through 129(1) of the former Act.

(3) Nevertheless, the lower court convicted Defendant 2 of this part of the facts charged solely on the grounds as indicated in its reasoning. In so doing, the lower court erred by misapprehending the legal doctrine on the principle of no punishment without law, thereby adversely affecting the conclusion of the judgment. The allegation in the grounds of appeal assigning this error is with merit.

2. As to the Prosecutor’s Grounds of Appeal

A. As to the grounds of appeal on not guilty portion

Examining the reasoning of the judgment below in light of the records, it is justifiable for the court below to maintain the judgment of the court of first instance that acquitted the Defendants of the facts charged in this case (excluding the guilty part against Defendant 2) on the grounds stated in its reasoning, on the ground that there is no proof of the crime, and there is no error in the misapprehension of the law of logic and experience and the principle of free evaluation of evidence

B. As to the guilty part of the appeal

The prosecutor also appealed the guilty portion of the judgment of the court below, but the appellate brief or the appellate brief does not state the grounds for objection.

3. Conclusion

Therefore, without examining the remainder of Defendant 2’s grounds of appeal, the part of the judgment below’s conviction against Defendant 2 is reversed, and that part of the case is remanded to the court below for further proceedings consistent with this Opinion. The prosecutor’s appeal against the acquittal portion is all dismissed. It is so decided as per Disposition by the assent of all participating

Justices Lee In-bok (Presiding Justice)