2018No87 A. Violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Misappropriation)

(b) Disclosure of official secrets

(c) Violation of the Act on the Aggravated Punishment, etc.;

(d) good offices.

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

(f) Offering of bribe;

(g) Violation of the Subsidy Management Act;

h. Violation of the Local Finance Act

1. A. B.

2.(c)(d) B

3. e.g. (f) h. C;

4. E.g. H.D.

5. A.g. H.E

Defendant B, C and Prosecutor

Pool (Public trial) Pool (public prosecution) Pool (public trial) ;

Law Firm F, Attorneys G (Defendant A)

Law Firm GP, Attorneys G Q and R (Defendant B)

L Law Firm, Attorneys Min (Defendant B)

J Law Firm, Attorneys K (Defendant B)

Law Firm GS Law Firm, Attorneys GT (Defendant B)

Attorney GU, GV (for Defendant C)

Attorney GU (for defendant D)

U Law Firm, Attorneys V (Defendant E)

Daejeon District Court Decision 2017Gohap107, 138 decided January 31, 2018

Gohap, 140(Joint), 159(Joint), Judgment

June 22, 2018

Of the judgment of the court below, the conviction against Defendant C shall be reversed. Defendant C shall be punished by imprisonment with prison labor for two years.

However, the execution of the above punishment is suspended for three years from the date this judgment became final and conclusive. Defendant B’s appeal and prosecutor’s appeal against the Defendants are dismissed, respectively.

1. Summary of grounds for appeal;

A. Defendant B (De facto mistake, misunderstanding of legal principles, unreasonable sentencing, etc.)

1) Although the prosecutor indicted Defendant B to the effect that he introduced Defendant A to Defendant C, the court below acknowledged the act of telephone conversations with Defendant A, AD, and AG as criminal facts without going through an amendment to a bill of indictment. In addition to the introduction of Defendant A, the court below erred by violating the principle of non-defluence.

2) The receipt of KRW 100 million by Defendant B, a wife of Defendant B, from Defendant C, is merely a loan of the above money from Defendant C, not only does the receipt by Defendant B, but also does not have been made under the pretext of good offices for the procedures for selecting business operators of X business in 2016 (hereinafter “business”). (In fact, misunderstanding of legal principles and factual errors)

3) Even if Defendant B’s act is found guilty, the lower court’s sentencing (five years of imprisonment and fine of KRW 100 million, additional collection) is excessively unreasonable.

B. Defendant C (De facto mistake, misunderstanding of legal principles, and unreasonable sentencing)

1) Although it was true that Defendant C remitted KRW 100 million to AE, Defendant C, the wife of Defendant B, but it was merely lent KRW 100 million to AE due to pure title, not paid to Defendant B under the pretext of mediation for the selection procedure of the business operator in 2016 (misunderstanding of facts and misunderstanding of legal principles);

2) Even if Defendant C’s act is found guilty, the lower court’s sentencing (two years and six months of imprisonment) is too unreasonable (e.g., imprisonment).

C. Prosecutor (Factual error, misunderstanding of legal principle, unreasonable sentencing)

1) misunderstanding of facts and misapprehension of legal principles

A) With respect to the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Misappropriation) against Defendant A, it is unreasonable to find the Defendant not guilty of this part of the facts charged, even though the said Defendant given preferential treatment to AC Co., Ltd. (hereinafter “AC”) to be selected as a subsidized project operator in 2016.

B) As to the divulgence of confidential information about Defendant A, it is unreasonable to find the Defendant not guilty of this part of the charges, even though the said Defendant disclosed the “15 year X Selection Plan (hereinafter “Intermediate document”) through AO to Defendant C, which is a secret for official duties.

C) It is unreasonable to find the Defendants not guilty of this part of the facts charged even though the Defendants offered and received a bribe free of charge to the wife AJ and the wife AE under the pretext of arranging the selection of the business operators in 2015 and 2016 with respect to the offering of a bribe and the offering of a bribe by Defendant B related to free legal services.

D) As to Defendant C and D related to the business in 2012 and 2014, violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud), violation of the Subsidy Management Act, violation of the Local Finance Act, violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Misappropriation), violation of the Subsidy Management Act, violation of the Local Finance Act, and violation of the Local Finance Act, Defendant C and D did not unlawfully receive subsidies in a way that disguises the details of the passbook transaction as if Defendant C and D possess 1.4 billion won, and in a way that lowers the development price, it is improper to recognize Defendant E as not guilty of this part

E) With respect to the violation of the Subsidy Management Act with respect to Defendant C related to the business in 2016, it is unreasonable to find the Defendant not guilty of this part of the facts charged even though the subsidy paid to AC was remitted to AB (hereinafter “AB”) and was used again to Defendant C for personal purposes.

2) Unreasonable sentencing

The lower court’s sentencing against Defendant B and C is unreasonable as it is too unfortunate.

2. Determination

A. Determination as to Defendant B’s assertion of violation of the principle of non-acceptance of interest

1) The identity of facts charged or facts constituting an offense ought to be determined on the basis of the Defendant’s act and social factual relations, in mind of the legal function of the identity of facts, and the normative elements should also be considered. In addition, where there is no concern that substantial disadvantages may be inflicted on the Defendant’s exercise of the right to defense, even if the court recognizes facts differently without going through amendments to indictment within the same extent as the facts charged and fundamental facts do not violate the principle of non-acceptance (see, e.g., Supreme Court Decision 2011Do165

2) Based on these legal principles, the following circumstances revealed through the records of this case: ① the facts charged in the case of 2017 Gohap107 among the judgment of the court below are as follows; ② the facts charged about the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Misappropriation of Trust) against the defendant A [Article 2-A-3] to the charge of the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (No. 2017 Gohap107) against the defendant; ③ the defendant C went away from the document evaluation stage in the process of selecting the business operator in 2016, upon the request of the defendant B; ② the prosecutor stated the facts that the defendant B was selected as a preliminary business after re-convening the defendant A; ② the prosecutor stated the facts charged about the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Bribery of Trust) against the defendant; ③ the court below did not accept the part of the charges related to the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Misappropriation of the defendant) as stated in detail.) as to the facts charged.

B. Judgment on the misconception of facts and misapprehension of legal principles by Defendant B and C

1) The elements for the establishment of a public official to accept, demand, or promise a bribe in relation to the referral of matters belonging to the duties of another public official are the conditions for the acceptance of, demand for, or promise to accept a bribe. Here, the term "public official taking advantage of his/her position" means a case where he/she uses a private relationship, such as friendship or kinship, but it constitutes a case where a public official legally or substantially has an influence on the handling of affairs handled by another public official uses his/her status, and there is no special relationship, such as a relationship, cooperative relationship, supervisory authority, etc. There is no need for a special relationship between him/her and others. And the term "mediation of matters belonging to the duties of another public official" is excluded from what belongs to the duties of the public official, and it does not necessarily require an improper act, or has the authority for approval or final decision with regard to his/her duties (Supreme Court Decision 2006Do735 Decided April 27, 2006).

Even in cases where a public official directly receives a bribe and allows another person to deliver a bribe to another person, and where such other person receives a bribe, where such other person receives a bribe as a deceased person or proxy of a public official, or where other person bears an obligation to such other person, a public official receives a bribe and is in a relationship that can be evaluated as being directly received by a public official in light of social norms, such as where a public official is exempted from expenditure, etc., the mere bribery under Article 129(1) of the Criminal Act shall be established (see Supreme Court Decision 98Do1234, Sept. 9, 198; 22, etc.). Furthermore, considering the difference between the first instance court and the appellate court’s credibility evaluation method based on the spirit of substantial direct and psychological principle adopted by the Korean Criminal Procedure Act as an element of trial-oriented trial, the appellate court’s judgment on the credibility and credibility of a witness’s statement is clearly different from the first instance court’s first instance court’s judgment and the first instance court’s first instance court’s second instance court’s first instance judgment’s second instance judgment’s second instance judgment’s judgment’s judgment’s determination on evidence evidence evidence evidence.

2) Based on these legal principles, in full view of the following additional matters recognized by the lower court and the first instance court’s duly admitted and investigated on the various circumstances revealed by the lower court, Defendant C offered a bribe of KRW 100 million to Defendant B who is a public official in charge of the business in 2016, as stated in the facts constituting the crime in the lower judgment, to Defendant B, who is a public official in charge of the business in 2016, and Defendant B can be sufficiently recognized to have been delivered with the knowledge of such circumstances. Accordingly, this part of the allegation by Defendant B and C is rejected.

A) From 2012 to 2015, Defendant C was selected as a X business entity or a preliminary business entity under the control of the Ministry of Agriculture and Forestry without any particular difficulties except for the following projects, on the ground that Defendant C’s corporate reduction of AB, the parent company, was erroneous in the documents in the name of AC from 2012 to 2015. In addition to the projects in 2015, the project was not carried out due to civil petition problems, and the project was carried out in 2012 and 2014 without difficulties with other business entities who have renounced the project in the middle due to authorization, permission, or financial problems, and was satisfying over the business goals. However, even if it was presented other public methods than the existing one, the project cost was reduced without passing the document evaluation procedure in 2016. However, if the project cost was in excess of 3.6 billion won and it was impossible to receive subsidies exceeding 3.8 billion won, there was no choice to receive AB or AB.

B) Considering the size and operation method of AC, and revenue structure that maximizes profitability by carrying out the business in connection with AB, etc., it is apparent that the operation of AB would have considerable difficulty if AC was deprived of the business in 2016, as well as AB. Accordingly, it appears that the Defendant C has to have had a reason to ensure that AC is selected as an operator of the business in 2016 after re-evaluation. Accordingly, the Defendant C requested AC to assist the Defendant, a senior public official of the Ministry of Agriculture and Forestry with the Ministry of Agriculture and Forestry who had a close relationship with AB on February 19, 2016, and requested AC to undergo re-evaluation by communicating the Defendant A in charge of the review.

C) Under the foregoing circumstances, Defendant C contacted Defendant B immediately after the decline in the document evaluation around February 19, 2016, and Defendant B immediately contacted Defendant A, a working person, etc., and eventually, Defendant C was selected as a preliminary business operator in 2016 after revaluation and received approximately KRW 3.8 billion of the subsidy around April 19, 2016, Defendant C remitted KRW 100 million to the account in the name of Defendant B, the wife of Defendant B, around April 20, 2016. As pointed out by the lower court, the loan certificate was not prepared for KRW 100 million paid as above, and there was no agreement on the ageer, and there was no attempts to repay it at all.

D) Defendant C reversed the existing statement to the effect that the above KRW 100 million paid to AE was not paid to Defendant B, but rather lent to AE, and that the statement made to the investigative agency is different from the fact. However, the lower court, on the grounds stated in its reasoning, determined that Defendant C was credibility in the statement made to the investigative agency, stating that “the above KRW 100 million was 10 million upon knowing the difficult circumstances of Defendant B,” notwithstanding its stated reasoning. In full view of the following circumstances, the lower court consistently stated to the effect that “the above KRW 100 million was not lent to AE, but paid without compensation for Defendant B” during the investigation by the investigative agency on several occasions, there is no special circumstance to deem that the above judgment of the lower court was clearly erroneous, or it is obviously unreasonable to maintain the judgment of the lower court on the credibility of the statement.

E) Defendant B’s wife AI and wife established and operated the AL Co., Ltd. (hereinafter “AL”) for the purpose of agricultural products distribution business. In that process, Defendant B proposed to FZ to conduct business with AJ and AE, and FZ concluded a business agreement with AJ, AE with the trust of Defendant B, who is a high-ranking public official, and the AK loaned the amount of KRW 00 million to AJ and AE. AK continued to demand the return of the above loan after the establishment of the same business relationship. In addition, not only the repayment demand and civil lawsuit, the filing of a criminal complaint, but also the continuous lending of money to AJ and AE’s business was a high-ranking public official, citing the trust of the Defendant B, and thus, Defendant B filed a civil petition with AJ and AE through the process of demanding the repayment of the loan amount and pressure of the loan amount.

F) Defendant B made a statement to the effect that: (a) Defendant B had an attorney-at-law and consulted with the attorney-at-law who did not pay AK money at the investigative agency; (b) had a loan of KRW 100 million from GW to an account under the name of AL around October 2014; (c) had a refund of KRW 100 million to AK; and (d) did not have a legal relationship but has a difficulty in getting a public official when he/she becomes a public official; (b) was given a loan of money to AJ and AE; (c) the process in which AK requested the Defendant to pay money to the Defendant; and (d) the response method in which the Defendant B had a de facto interest in the above borrowed money; and in particular, the Defendant AJ has an economic interest relationship with the Defendant as the above Defendant.

G) Defendant C had been well aware of the fact that Defendant B was suffering from the debt owed by AI and AE to AK as above from the investigative agency to the court of the trial at the trial at the trial at the trial at the trial at the court, and that Defendant C was in charge of pleadings in criminal cases against AJ and AE with the inside lawyer of the company it operates as AH, which is an inside lawyer of the company it operates. Defendant C seems to have transferred KRW 100 million to the account in the name of AE, as stated in the facts of the crime in the judgment of the court below, so that Defendant C would be well aware of the various circumstances surrounding the above borrowed loan debt at the above time and to use it for repayment of the above borrowed loan debt for Defendant B.

H) At the time of remitting KRW 100 million to the account under the name of Defendant COAE, Defendant B asserts that the case for which AJ and AE filed a criminal complaint had already been issued a non-suspected disposition, and that Defendant B did not seem to have caused pressure to such an act by Defendant B following the completion of most of the relevant civil petitions. However, as of April 2016, even before AJ and AE were unable to receive most loans under the civil judgment finalized by AJ and AE, and as seen earlier, it appears that AK was in the role of Defendant B in the process of lending money to AJ and AE, as well as that it appears that AK was in a trust condition that AJ and AE was aware of the fraud. However, in light of the fact that the civil petition was disposed of without suspicion and the answer against the civil petition was made, it is difficult to deem that Defendant B was a public official of the Republic of Korea under the name of Defendant B’s account or that Defendant B was a public official of the Republic of Korea, and that it was difficult to deem that the foregoing situation was resolved.

(E) Defendant B asserts that even if the amount of KRW 100 million paid to the account in the name of AE can be evaluated as the same as the amount directly received by Defendant B, this is a joint obligation borne by AJ and AE, and as such, Defendant B should be deemed to have received it only within the limit of KRW 50 million, which is the amount beneficial to AJ, i.e., the wife, as the joint obligation borne by AJ and AE. However, even if the amount of obligation owed by AJ and AE is divided into KRW 250,000,000,000,000 exceeding KRW 125,000,000,000,000 paid by Defendant B, and the said obligation is not a joint obligation that is not a divided obligation, it cannot be deemed that only 1/20,000,000,000,00

C. Judgment on the prosecutor's misconception of facts and misapprehension of legal principles

1) Judgment on the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Misappropriation) against Defendant A

A) An act in violation of one’s duty in breach of one’s duty in breach of one’s duty in breach of one’s duty

In light of the specific circumstances, the provisions of statutes, the terms of a contract, or the principle of trust and good faith refer to all acts that lose a fiduciary relationship with the principal by failing to perform an act that ought to be naturally expected or by performing an act that ought not to be done. The criminal intent of breach of trust is sufficient if there is awareness that property damage to the principal was caused or is likely to occur to the principal as a result of the act of breach of trust, and there is an awareness that one’s or a third party is benefiting property, and there is no intention to cause property damage to the principal or obtain property benefits to the principal, and such recognition is sufficient with domination. In a case where the criminal intent is denied by asserting that the defendant committed an act at issue in his or her own interest, it is sufficient to prove an indirect fact that has considerable relevance to the principal’s intention in light of the nature of an object, and what constitutes an indirect fact that has considerable relevance to the property damage should be reasonably determined by the method of determining the economic damage of the principal by virtue of the detailed observation or analysis of property damage (see, e.g., Supreme Court Decision 2000Do4, supra.

B) Based on these legal principles, in full view of the following additional matters recognized by the lower court and the first instance court’s duly adopted and investigated evidence, Defendant A, as the Director General of the Ministry of Agriculture and Forestry, engaged in an act in violation of his duties in the course of performing duties in relation to the selection of a business operator in 2016, or did not have any other evidence to prove that the Defendant’s act in violation of the duties was inflicted on the State, and there is no other evidence to prove otherwise. Therefore, the lower court’s determination is just and acceptable, and there is no error affecting the conclusion of the judgment, and thus, the Prosecutor’s assertion in this part is not acceptable.

① Although the prosecutor pointed out that AC was excluded from the document evaluation in the process of selecting a business operator in 2016, it included AC in the field evaluation subject to the document evaluation, and eventually, it was selected as a preliminary business operator. However, there is a doubt about the result of evaluation in the process of selecting a business operator, it is possible to conduct re-evaluation if there is any doubt about the result of evaluation, and to discover a business operator who is capable of carrying out a faithful business, and it is also possible to find out the business operator who has been selected as a business operator in 2012, 2014, and 2015. In full view of the various circumstances stated by the court below, the document evaluation process confirms the reason why AC, which faithfully carried out a business, was remarkably lower than that of other business operators, and if AC was conducted re-evaluation as it could obtain a date, it cannot be deemed as a breach of trust that has lost fairness merely because it acknowledged the exception without exception.

② On the grounds of various circumstances as indicated in its reasoning, the lower court determined that there was a need to verify AC’s public law due to policy reasons, such as modification of business direction and activation of projects, etc. with respect to Defendant A, who is a public official in charge of the review, as well as the Ministry of Agriculture and Forestry. The lower court’s determination cannot be deemed to have been erroneous. Various matters examined by Defendant A to re-examine were the result of substantially accepting AC’s opinions. However, there were reasonable grounds and materials for each assertion, and there were no circumstances to be deemed unreasonable or unfair in light of the purpose of the business in 2016.

③ The prosecutor asserts that if a public prosecutor has given an opportunity to AC who was deprived of the evaluation of documents due to the fairness of the evaluation committee member, he should give the following opportunity to all other companies. However, as seen earlier, unlike other companies, AC has actively raised an objection to the decline in the evaluation of documents, and the reason why it should be revaluated has been made, and the defendant A conducted a revaluation with AC is recognized not only because the evaluation committee member's unfairness is unfair, but also because of the need to comprehensively consider various factors stated in the court below.

④ It was true that AC failed to meet the requirements for securing capital above the self-paid amount. However, even after the completion of the selection of a business operator in 2016 as indicated by the lower court, even after the completion of the designation of a business operator in 2016, it appears that AC was unaware of the fact that the business operator did not meet the capital requirements, and even among many selected businesses as a business operator or a preliminary business operator, the business operator is only AC, and the possibility that other businesses designated as a business operator did not meet the capital requirements may not be ruled out, and the possibility that other businesses designated as a business operator did not meet the capital requirements, and the business operator did not accurately understand whether the business operator satisfies the capital requirements. It cannot be readily concluded that the selection of AC as a business operator in 2012 and 2016 is a breach of trust or that there was an intent to commit a breach of trust against the Defendant.

2) Determination on Defendant A’s divulgence of official secrets

A) Article 127 of the Criminal Act provides that a person who is or was a public official shall divulge a secret in the course of performing his/her duties under the Acts and subordinate statutes. Here, a secret in the course of performing his/her duties is not necessarily defined as a secret under the Acts and subordinate statutes or specified as a secret. It includes not only the matters classified as a secret according to the political, military, diplomatic, economic, and social needs, but also the matters of considerable benefits that the Government, a public office, or a citizen is not known from an objective and general point of view, but also matters of considerable benefits that are not known to the outside from an objective and general point of view, but also should be recognized as having the value of protecting it as a secret. Meanwhile, a crime of disclosure of a secret in the course of performing his/her duties is not to protect the secret itself, but to protect the function of the country narrowed by the infringement of the duty of confidentiality of

B) Based on these legal principles, in full view of the following additional matters acknowledged by the court below and the court below's duly adopted and investigated evidence, it is difficult to see that the "Intermediate document" as stated in the facts charged includes contents constituting a secret in the line of duty worth protection, or that Defendant A has disclosed the above document to Defendant C without reasonable doubt, and there is no other evidence to acknowledge it. Therefore, the judgment of the court below is just and acceptable, and there is no error affecting the conclusion of the judgment by misunderstanding the facts, and thus, the prosecutor's assertion on this part is not accepted.

(1) As pointed out by the court below, it is difficult to view that the documents prepared within the Ministry of Agriculture and Forestry, such as: (a) there are almost little expressions written in a report prepared by the Ministry of Agriculture and Forestry; or (b) there are many parts found in a form inconsistent with the method of preparing a report by the Ministry of Agriculture and Forestry; and (c) there are documents written within the Ministry of Agriculture and Forestry to clearly prove whether they are documents written within the Ministry of Agriculture and Forestry.

② In particular, the files for selection of a business entity are posted on the Ministry of Agriculture and Forestry’s website with almost little of intermediate documents. If a person visits the website, the files are accessible.

Any person can freely download and freely modify them in Korean language files. As such, Defendant C was able to download his/her files on March 2015, which he/she received on his/her own “Public Notice,” and made a statement that the intermediate document was made with the direction of the employee.

③ Prior to the instant case, Defendant C appears to have been frequently recommended by the Ministry of Agriculture and Forestry to improve the systems related to X-related projects with respect to the Ministry of Agriculture and Forestry. Defendant C’s intermediate documents may not be ruled out to have been drafted for the purpose of requesting the Ministry of Agriculture and Forestry to reflect his opinion after downloading the files disclosed on the Ministry of Agriculture and Forestry’s website and reflecting them, and then transmitting them to the Ministry of Agriculture and Forestry. In fact, the matters indicated in the intermediate document were reflected in the final document, and any matters mentioned in the intermediate document were not carried out as they were mentioned in the intermediate document, and even if examining the contents thereof, most reasonable grounds exist, and most of them are unfair or are not given preferential treatment to a specific enterprise. Thus, it cannot be readily concluded that the documents were disclosed in advance in the process of preparing the draft document solely on the grounds that the final content is somewhat favorable

3) Determination of the offering of bribe to Defendant B and the offering of bribe to Defendant C related to free legal services

A) “A bribe shall be received in connection with a referral of matters pertaining to the duties of another public official” as referred to in Article 132 of the Criminal Act refers to an act of accepting a bribe under the pretext of arranging matters pertaining to the duties of another public official, and there is no need to specify the contents of the other public official, who is the other party to the referral, or his duties. Since the act of arranging is an act in the future, it is nothing more than necessary that there is a pending issue to be resolved by the referral to the other party at the time of accepting the bribe, but it is not necessary that there

A certain degree of the fact that the name of the acceptance of a bribe is related to the intermediation of the relevant matter ought to be specified. Only is it is limited to the extent that, if the other party appears well, the other party would have to have a certain help or to have no possibility of causing damage, and the mere fact that the other party received and delivered the bribe while deeming that the other party had such expectation (see Supreme Court Decision 2017Do12346, Dec. 22, 2017) is not a crime of acceptance of a bribe (see Supreme Court Decision 2017Do12346, Dec. 22, 2017).

B) Based on these legal principles, in full view of the following additional matters acknowledged by the lower court and the evidence duly admitted and investigated by the lower court on the various circumstances stated by the lower court, it is difficult to view that Defendant C provided legal services to Defendant B for the purpose of arranging the business in 2015 and 2016, without reasonable doubt, and there is no other evidence to acknowledge it. Therefore, the lower court did not have any other evidence to acknowledge it.

The judgment is just and acceptable, and it cannot be said that there was any error affecting the conclusion of the judgment by misunderstanding the facts, and thus the prosecutor's assertion on this part is not accepted.

① As seen earlier, AC had been selected as a X business entity or a preliminary business entity under the control of the Ministry of Agriculture and Forestry without any particular difficulties in the business in 2012 and 2014. Based on the results of authorization and permission, financial issues, etc., it has been carried out without interruptions with other business entities that have waived the business in the middle. Based on this, it was selected as a preliminary business entity in 2015. Defendant C had not been in a situation to request the Defendant B to select a business entity when it provides legal services as described in the facts charged.

As seen earlier, Defendant B was pressured by FZ and K from around 2014 due to Defendant B’s obligation to AJ and AE with respect to FZ and AE. Accordingly, Defendant C appears to have been able to have been subject to reduction. Accordingly, Defendant C was judged to have ordered AB’s in-house lawyer who had been operated at the time due to the difficulty of Defendant B, which was in a close relationship with AB at the time, to participate in the argument of AJ and AE. In light of the response immediately after Defendant C was deprived of the document evaluation of the project in 2016, Defendant C could not have been entirely anticipated that it would decline from the project in 2016.

③ Defendant COAJ and AE may be deemed to have been able to continue to maintain a friendly relationship with Defendant B at the time of providing legal services as above. However, it is difficult to view that even until that time, it was proven that Defendant B was expecting to arrange the selection of the business beyond a remote expectation to the extent that it would not have any possibility of receiving any assistance or incur any damage if it appears well to Defendant B.

4) Determination on the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud), violation of the Subsidy Management Act, violation of the Local Finance Act, violation of the Local Finance Act, violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Misappropriation), violation of the Subsidy Management Act, violation of the Subsidy Management Act, and violation of the Local Finance Act

A) "False application or other unlawful means" under Article 40 of the Subsidy Management Act refers to active and passive acts that may affect the decision-making on the grant of subsidies by deceptive means or other acts which are deemed unlawful by social norms, even though they cannot be granted subsidies under the same Act in light of normal procedures. In addition, the above legal provisions punish only a person who actually received subsidies, etc., and do not stipulate the attempted crimes under the same Act, and Article 42 of the same Act provides separate penal provisions for the violation of individual administrative procedures. In light of the above, the purport of the provision is to punish the State's financial interests as the legal interests protected by the law, and to punish the violation of the order or fairness of the administration of subsidies, or to punish the violation of individual administrative procedures, and thus, it does not mean that a subsidy is granted in excess of the amount to be granted for affairs or projects which are not subject to the grant of subsidies under the same Act, and the case where a subsidy is granted in excess of the amount to be granted under the same Act shall not be deemed legitimate (see, e.g., Supreme Court Decision 2001Do2684).

B) Based on these legal principles, IC and its parent company’s financial status, AB’s financial status, AC’s parent company, the amount of funds invested in its business in 2012 and 2014, AC’s use of subsidies, and its capital exceeding the self-paid amount cannot be assessed only on the balance of passbooks. Based on the documents submitted, AC’s actual examination and determination by the Ministry of Agriculture and Forestry. The development period price stated at the time of the application for subsidies was indicated as the total price of the development facilities. The development period price stated at the time of the application for subsidies seems to be excessive, and AC had been normally carried out the business in 2012 and 2014, and it was even possible for AC and D to achieve the business goals in excess of the business goals, and it is difficult to view that there was no reasonable ground to acknowledge that Defendant C and D were granted subsidies or other fraudulent methods, or that there was no other reasonable ground to prove that Defendant ED’s application for subsidies was unlawful.

5) Determination as to the violation of the Subsidy Management Act against Defendant C related to the business in 2016

A) In a case where a company has the external form of a juristic person but actually takes the form of a juristic person, and in substance, it is merely a private enterprise of another person behind the corporate personality, or is used without permission as a means to avoid the application of the laws against the person behind the corporate personality, the denial of the responsibility of the person behind the corporate body by asserting that even if the act of the company is an act of the company in the external state, it shall belong only to the company on the ground that the person behind the corporate body is a separate personality, and thus, it shall not be permitted in light of justice and equity as an abuse of the corporate body in violation of the principle of trust and good faith. Therefore, the company as well as the person behind the corporate body shall be held liable for the act of the company (see Supreme Court Decision 2002Da66892, Nov. 12, 2004).

However, it is reasonable that there exists a substantial human partnership between a parent company and a subsidiary. Thus, it is difficult to view that the parent company's independent corporate personality of the subsidiary is an abuse of corporate personality in relation to the creditor of the subsidiary, and at least it is necessary to exercise complete control to the extent that the subsidiary loses its own opinion or existence and the parent company operates its own business as a part of its business. Specifically, it is necessary to clearly distinguish between the parent company and the subsidiary's property, business, and external corporate transaction activities, etc., but the parent company has a strong control over the subsidiary as a result of the parent company's exercise of shareholder's rights, such as the parent company's exercise of shareholder's rights, and other circumstances where the size of the subsidiary has been expanded as a result of the parent company's exercise of shareholder's rights, but the size of its capital has not increased accordingly, and it is also necessary to use the subsidiary's own corporate personality as a means of avoiding the parent company's corporate personality without permission (see, e.g., Supreme Court Decision 201Du26260, Jan. 26, 2006).

B) Based on these legal principles, in full view of the following additional matters recognized by the lower court and the first instance court’s duly adopted and investigated by the evidence, it is difficult to view that the amount of KRW 1.1 billion stated in the facts charged by Defendant C used for tax payment, etc. was proven without reasonable doubt, and there is no other evidence to acknowledge it. Therefore, the lower court’s determination is justifiable, and it is not acceptable to accept the Prosecutor’s assertion on this part, as it did not err by misapprehending the facts and adversely affecting the conclusion of the judgment.

① AB and AC claim that the subsidy granted to Defendant COAC was appropriated by means of remitting it to AB on the ground that both Defendant AB and AC are companies run by Defendant C. However, as pointed out in the original judgment, AB and AC are separate corporations independently operated, although they are in a parent company and subsidiary company, AC is a subsidiary, AB is a public corporation, and AB is in a relationship where AB newly constructs a factory and receives construction cost under a subcontract from AC in the course of carrying out a project in 2016 as a public corporation, and it is reasonable to deem that the payment of construction cost is in line with the purpose of a subsidy program. Only because a subsidy granted to AC is granted to AB, it cannot be readily concluded that Defendant C, an operator, has utility the subsidy.

② Defendant C and D made a statement as a business model that maximizes profitability with the subsidies from the investigative agency to the court. In fact, Defendant C and D made a new construction of factory facilities, etc. necessary for the business in 2016 and received the said subsidies from AC after entering into a subcontract with AC.

③ Ultimately, insofar as AC subcontracted a construction project to AB and paid a subsidy to AB in accordance with the purpose of the project, it cannot be deemed that the subsidy was used for any purpose other than the subsidized project, and it is difficult to view that the said subsidy continues to maintain the nature of the subsidy subject to the Act on the Management of Subsidies even after AB received the construction payment.

④ Even if AB and AC are the same and the AC’s legal personality is denied, the subsidy granted under the name AC was transferred to the AB’s account. Of the mixed AB’s funds, there is no evidence to specify whether the amount paid to Defendant C out of the combined AB’s funds is the original business fund of the AB possessed by the AB, and whether the subsidy granted by the use of AC is the financial resource. Furthermore, the 6.3. Furthermore, the AC has carried out the said project without interruption until now by raising the funds to meet the subsidy granted in relation to the project in 2016. In light of the above circumstances, it is difficult to deem that Defendant C used the subsidy for the purpose other than the subsidized project.

D. Determination on Defendant B’s assertion of unfair sentencing and the Prosecutor’s assertion of unfair sentencing on Defendant B

Based on the statutory penalty, the sentencing is a discretionary judgment that takes place within a reasonable and appropriate scope by comprehensively taking into account the factors that serve as the conditions for sentencing prescribed in Article 51 of the Criminal Act, and there exists a unique area of the first instance court with respect to the determination of sentencing under the Korean Criminal Procedure Act, which takes the trial-oriented principle and the principle of directness. In addition, in light of such circumstances and the nature of the appellate court’s ex post facto and in addition, in cases where there is no change in the conditions of sentencing compared to the first instance court, and the sentencing of the first instance court does not deviate from the reasonable scope of discretion, it is reasonable to respect such a case. Although the sentence of the first instance falls within the reasonable scope of discretion, it is desirable to refrain from imposing a sentence that does not differ from the first instance court’s opinion (see Supreme Court en banc Decision 2015Do3260, July 23, 2015)

The court below sentenced the above sentence to Defendant B on the grounds as stated in its reasoning. The court below sentenced the above sentence to Defendant B on the ground that the above Defendant was the first offender with no criminal history, and was not actively demanding a bribe in the first place, and it is difficult to view that the business operator selection of the business operator in 2016 was unlawfully processed, etc., and that the above Defendant’s circumstances favorable to the sentencing alleged in the trial, such as the above Defendant’s acceptance of a large amount of bribe 100 million won as a senior public official, and the above circumstances unfavorable to the sentencing alleged in the trial of the court, are considered sufficiently when determining the punishment in the court below, and considering the above factors of sentencing recognized by the evidence duly adopted and investigated by the court below and the court below, it does not seem that the judgment of the court below exceeded the reasonable scope of discretion, and it is reasonable to respect the sentencing of the court below on the grounds that there was no change in circumstances in the conditions of sentencing in the trial. Accordingly, all of the arguments by Defendant B and the prosecutor are not acceptable.

E. Determination on Defendant C’s assertion of unfair sentencing and the Prosecutor’s assertion of unfair sentencing on Defendant C

Defendant C, who is a senior public official of the Ministry of Agriculture and Forestry, offered a large amount of bribe under the pretext of arranging the selection of a business operator in 2016 by taking advantage of the relationship with Defendant B, who is a senior public official of the Ministry of Agriculture and Forestry. Considering the above Defendant’s act that the fairness and transparency of X business supervised by the Ministry of Agriculture and Forestry was damaged, the public confidence of the public officials, and the large amount of bribe granted amounting to KRW 100 million, the above Defendant need to bear strict liability corresponding thereto.

However, it is true that Defendant C has contributed significantly to AB and X projects promoted by the Ministry of Agriculture and Forestry, which are companies that build waste disposal and pollution prevention facilities, and their subsidiaries. Although Defendant C has offered a bribe to Defendant B under the pretext of mediation in connection with the selection of business operators, the selection of business operators in 2016 appears to have been made through legitimate examination procedures regardless of the offering of bribe as above, and the circumstances that could have been considered to have acquired illegal profits in return for the offering of bribe are not discovered, considering the circumstances favorable to the above Defendant, and taking into account the above Defendant’s age, career, character and behavior, environment, motive and circumstance of the crime, and the balance between the sentencing factors and the sentencing factors of all the cases in the instant argument, including the above Defendant’s age, career, character and environment, circumstances after the crime, etc., as a whole, it is determined that the sentence against the above Defendant is inappropriate.

Furthermore, the Prosecutor’s assertion that the lower court’s sentence against Defendant C is too weak in light of the aforementioned favorable circumstances in sentencing, such as the fairness and transparency of the above business administered by the Ministry of Agriculture and Forestry as well as considerable damage to the general public’s trust, etc., that is, the circumstance unfavorable to the sentencing asserted by the Prosecutor in the trial of the lower court, is already sufficiently taken into account, and considering the aforementioned favorable circumstances in sentencing, etc., cannot be accepted.

3. Conclusion

Therefore, the appeal filed by the defendant B and the prosecutor is dismissed in accordance with Article 364(4) of the Criminal Procedure Act on the grounds that the appeal filed by the defendant C is without merit. Since the appeal by the defendant C is well-grounded, the judgment of the court below is reversed pursuant to Article 364(6) of the Criminal Procedure Act on the grounds that the part of conviction against the defendant C among the judgment of the court below is ruled as follows (However, since it is obvious that "the defendant is a clerical error from the "A" and "AO" to the 10th 12th th th th th th of the judgment of the court below,

[Grounds for the judgment re-written as to the guilty portion against Defendant C]

Criminal facts and summary of evidence

The summary of the facts constituting the crime recognized by this court and the summary of the evidence are as stated in the corresponding column for conviction against Defendant C of the judgment below. Thus, it is cited in accordance with Article 369 of the Criminal Procedure Act.

Application of Statutes

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

Articles 133(1) and 132 of the Criminal Act

1. Suspension of execution;

Article 62(1) of the Criminal Act (General Consideration favorable to Defendant C among the reasons for sentencing below)

1. The grounds for sentencing: Imprisonment with prison labor for one month to five years;

2. Scope of recommended sentences according to the sentencing criteria;

[Extent of Recommendation] Type 4 (at least KRW 100 million) Basic Area (at least KRW 100 million)

【Special Convicted Person】

3. Determination of sentence: Two years of imprisonment and three years of a stay of execution; and

The sentence shall be determined as per the order, taking into account all the conditions of sentencing as examined in the second E of the judgment on the grounds of appeal by Defendant B, C, and the Prosecutor as seen earlier.

The presiding judge, judges and leather

Judges Doo.

Judges in depth;