Defendant

Defendant

Encouragement failure to institute a prosecution, Kim Jong-ju trial

Law Firm continental Aju, Attorneys Cho Do-ho et al.

Suwon District Court Decision 2015Ra34 decided November 19, 2015

The judgment of the court below is reversed.

A defendant shall be punished by imprisonment for not less than eight months.

except that the execution of the above punishment shall be suspended for two years from the date this judgment becomes final and conclusive.

The defendant shall be ordered to provide community service for 80 hours.

Of the facts charged in the instant case, each of the facts charged are acquitted.

The summary of the acquittal portion in the judgment against the defendant shall be publicly announced.

1. Summary of grounds for appeal;

A. misunderstanding of facts and misapprehension of legal principles

1) Points of occupational breach of trust

The Victim Air Force ○○○○ Air Force (hereinafter “instant flight group”) drafted a written agreement on August 17, 2009 (hereinafter “instant agreement”) with Nonindicted Co. 1 (hereinafter “Nonindicted Co. 1”) with respect to the installation of a golf club electric utility model. Nonindicted Co. 1’s use of the instant agreement free of charge for a certain period of time to compensate for its property value instead of accepting the electronic leading car system is in a quid pro quo relationship. However, there was a change of circumstance that an increase in investment cost occurred while the additional construction was conducted. Nevertheless, it was impossible to achieve the purpose of collecting investment cost of Nonindicted Co. 1 based on the instant agreement, and thus, it would be contrary to the trust of Nonindicted Co. 1. Accordingly, if Nonindicted Co. 1 violated the instant agreement to recover the amount equivalent to the increased value of property due to the implementation of the additional construction project, the Defendant did not have any reasonable authority to make any changes in the agreement to the extent that it did not have any profit within the reasonable scope. Accordingly, the Defendant did not have to recognize the amount of the additional construction cost.

2) Forgery of official documents and the point of uttering of forged official documents

Since the revised agreement is signed and sealed by a person who is authorized to affix an official seal, so the formation of the document is authentic, so the crime of forging a public document is not established.

B. Unreasonable sentencing

The sentence of the lower court (one year of imprisonment, two years of suspended execution, and 120 hours of community service order) is too unreasonable.

2. Determination of misconception of facts as to occupational breach of trust

(a) Facts of recognition;

The following facts can be acknowledged according to the evidence duly adopted and examined by the court below.

1) The instant flight group, upon having to establish an electronic leading cart at the △△ physical training center, selected an enterprise through a bid method attracting private investment to secure the budget for the establishment and operation of the system through deliberation by the Military Welfare Management Committee, and planned to implement the project by means of donation. The Air Force Chief of Staff, while approving the establishment of the above physical training center electronic leading car system, has selected an investment plan to minimize the interest burden and early repayment at the time of examining the inducement of private investment, and given instructions to promote it in a way consistent with the interests of the Air Force so as to take measures to reduce the cost to minimize the cost of construction compared with the head of other physical training center.

2) On August 13, 2009, as a result of the designated competitive bid for the construction of the Jeondong system of golf course, Nonindicted Co. 1 and Nonindicted Co. 3 applied for the bid price of KRW 1 billion at a price below Nonindicted Co. 3’s KRW 1 billion. Accordingly, the instant flight team and Nonindicted Co. 1 drafted the instant agreement on August 17, 2009. Article 7(2) of the said agreement provides that “The period for permission for use and profit-making shall be from the date of completion of construction ( November 30, 2009) to the time the following period first arrived at the time from the date of completion of construction (Article 26(1) of the Enforcement Decree of the State Property Act). On November 1, 2001, the total amount of the donated property reaches the price of the property with the donation, and on February 1, 2008, the total amount of appraisal and assessment (excluding the cumulative amount of KRW 2600,000,00).

3) However, Nonindicted Co. 1 did not comply with the deadline for completion of the Jeondong Construction and caused damages for delay due to delay of the construction. The instant flight team intended to collect damages for delay from Nonindicted Co. 1. However, Nonindicted Co. 1 showed that the flight team would pay compensation for delay only when the flight team pays additional construction costs, as the additional construction costs were paid. Accordingly, the issue related to compensation for delay was not resolved between the instant flight team and Nonindicted Co. 1. As to the additional construction required by Nonindicted Co. 1, there was a lack of material, and there was no deliberation and resolution by the Military Welfare Management Committee for approval.

4) On November 11, 201, the instant flight team held a facility management committee and passed a resolution to acquire the property as State property by accepting the Kat Safekeeping and electronic guidance car system donated by Nonindicted Company 1. According to the result of the appraisal and assessment, the value of the donated property was calculated as KRW 1.127 million. The total amount of the appraisal prepared by the head of the △ branch office of Nonindicted Company 4 was KRW 1.128 million. Among them, the amount of the appraisal prepared by the head of the △ branch office of Nonindicted Company 4 was included in KRW 35 million.

5) The Defendant, without undergoing deliberation and resolution by the Military Welfare Management Committee, prepared a modified agreement with the person in charge of the instant flight group in the administrative office, along with the details of deliberation and resolution by the said Committee, and submitted the modified agreement to the person in charge of the title of the head of the instant flight group at the administrative office. Accordingly, the officer in charge of the mistake that the amended agreement was made and that the amended agreement was made accordingly affixed the official seal under the name of the head of the group.

B. Determination

Comprehensively taking into account all the following circumstances recognized by these evidence, the Defendant is obligated to prepare a modified agreement through legitimate procedures, such as going through a deliberation and resolution by the Military Welfare Management Committee, by paying a duty of care to prevent property damage to the instant flight group, after examining the following circumstances based on specific and objective data, and then violating such duty, accepting Nonindicted Company 1’s assertion as is, and preparing a modified agreement with the content of the instant agreement without complying with legitimate procedures, thereby obtaining pecuniary benefits to Nonindicted Company 1, and sufficiently recognizing the fact that property damage has occurred to the victim.

1) We examine whether the part related to financial costs is merely a simple statement of the total value.

The Air Force Chief of Staff approved the installation of an electronic leading car system in the direction consistent with the interests of the Air Force. Accordingly, at the training center of another Air Force Base, the agreement was made in favor of the Air Force with a view to separating the financial expenses and credit card fee rates so that the payment of interest can be minimized and the repayment of principal can be made early. Nevertheless, at the other units of the Air Force Base, Non-Indicted Company 1 made a written agreement in favor of the Air Force with a view to separating the financial expenses and credit card fee rates so that the payment of interest can be made early, and the payment of principal can be made at the training center of this case. Nevertheless, as Non-Indicted Company 1 made a written agreement in favor of the Air Force, it was accepted by the Defendant and revised the contents of the agreement in favor of the Air Force. Accordingly, the ratio divided in relation to the increase of the construction amount (the addition of the construction amount) and the calculation of financial expenses (the addition of the construction amount) and the calculation of non-Indicted Company 1's financial expenses increase in the calculation period of profits.

2) We examine whether there is a reasonable ground to recognize and grant additional construction cost claimed by Nonindicted Company 1 as it is.

Although Nonindicted 5, the Defendant’s successor, began to serve as the president of the instant flight team, and he stated that there was an additional construction work from the Defendant on the part of the Defendant, he did not confirm the said additional construction work because there was no drawings or approved documents. It is also difficult to conclude that the value of the donated property determined by the facility management committee was 1.127 million won, and there was no reason to deem that the construction cost was determined by the pertinent amount (an appraisal written statement only includes 35 million won in the value of the additional construction work) and there was no further decision to recognize the additional construction work as equivalent to the difference. In light of the foregoing, Nonindicted 6, the head of the operation team of the physical training team, presented the agreement to the effect that the additional construction work was 0 billion won for the existing construction cost, and the additional construction work was 83 million won for the additional construction cost, and the total amount of the construction cost was 190 million won for the additional construction work cost to the extent that there was no reason to deem the additional construction work cost to have been stated in the additional construction work cost.

3) We examine whether it is unnecessary to undergo deliberation and resolution by the Military Welfare Management Committee or whether it can be seen as having undergone deliberation and resolution by the Military Welfare Management Committee, due to the deliberation and resolution by the Facilities Management Committee.

Matters concerning donation and operation, such as Jeondong cart, constitute matters subject to deliberation and resolution by the Incidental Welfare Management Committee (see Article 9(3) of the Guidelines on the Operation of the Physical Training Center), and the Incidental Welfare Management Committee cannot be deemed to have been deliberated and resolved by the Incidental Welfare Management Committee, and the contents and roles of deliberation and resolution by the Incidental Welfare Management Committee are completely different. The Defendant was aware of the fact that the deliberation and resolution by the Incidental Welfare Management Committee was made at the time of the preparation of the first agreement and the first amendment agreement between the victim and the Nonindicted Company 1, as well as the Defendant was in the position of the secretary of the Incidental Welfare Management Committee, it was different from the deliberation and resolution by the Incidental Welfare Management Committee and the Incidental Welfare Management Committee as the Defendant was in the position of the secretary of the Incidental Welfare Management Committee. Accordingly, it is difficult to accept the Defendant’s defense that there was justifiable reason to believe that the incidental Welfare Management Committee could be deemed to have been deliberated and resolved and that there was authority to prepare the amended agreement.

4) We examine whether the victim suffered property damage due to the Defendant’s occupational breach of trust, and whether Nonindicted Company 1 acquired property benefits.

After the Defendant drafted the revised agreement, the agreement was revised to Nonindicted Company 8, which was in charge of administration, and the agreement was revised to Nonindicted Company 1 to settle the principal amount of 1127 million won, and the agreement was revised to 9.68% compared to the financial expense of Nonindicted Company 1. The Defendant instructed that the Defendant would not separate the financial expense and credit card fee rates of Nonindicted Company 8, and that the other flight team would be in accordance with the method of calculating the other flight team's financial expense and credit card fee rates. Accordingly, the Defendant would not be able to argue that the agreement was revised to the effect that it would result in losses to Nonindicted Company 1 by preparing a written confirmation on the basis of the settlement agreement that would result in losses to Nonindicted Company 1, 200, 12700,000, and 9.68% of the financial expense of Nonindicted Company 1, which would result in losses to Nonindicted Company 1, which would have been subject to the amendment of the agreement. This would not have been applied to the present agreement after the revision of the agreement.

3. Determination of misconception of facts and misapprehension of legal principles as to the forgery of an official document and the uttering of an forged official document

A. Summary of this part of the facts charged

From July 1, 2007 to June 30, 2012, the Defendant, working as the manager of the ○○○ Track Military Forces, which was located in Gangnam-si, and took overall charge of the management and operation of the facilities of the ○○ Track Military Forces. Around August 17, 2009 with respect to the installation of the ○ ○ Track Military Forces in the military unit, Nonindicted Company 1 and “Nonindicted Company 1,” in the name of the head of the ○ ○ ○ Track Military Forces, shall contribute the electronic guidance cart system to Nonindicted Company 1 and “the ○ ○ ○ ○ Track Military Forces,” and the sum of the principal repayment amount paid by the flight group to Nonindicted Company 1, 1,008,000,000 won, including the cost of the facility investment and the average rate of credit card commission, shall be 6.22% per annum and profits-making management between Nonindicted Company 1 and Nonindicted Company 1’s Air Force.”

On May 21, 2012, the Defendant, at the above physical training center office, prepared and printed out the agreement on the operation and management of the electronic guidance car system between the Air Force ○○ Tracon Flight Team and Nonindicted Company 1 as stated in the preceding paragraph for the purpose of using a computer without deliberation and resolution by the Military Welfare Management Committee. At the administrative office, the Defendant, by deceiving a person in charge of the management of the electronic guidance car system in the name of the head of the Air Force ○ ○○ Tracon Flight Team and had him seal it in the above document, presented as if he was an official document prepared to Nonindicted Party 2 to the representative of Nonindicted Company 1

Accordingly, for the purpose of exercising authority, the Defendant, without authority, forged Chapter 1 of the Agreement on the Operation and Management of Electronic Intelligent System between the Air Force ○○○ Operation Flight Group and Nonindicted Company 1 in the name of the head of the Air Force ○○ Operation Flight Group, which is an official document, and exercised it.

B. Determination

In the case of private documents, if a person who prepares a document different from his/her name holder's identity by using the document that misleads the content of the private document, using a seal affixed by the name holder who does not know the content, it is merely a means of document forgery and thus can constitute a crime of forging private documents (see, e.g., Supreme Court Decision 2000Do778, Jun. 13, 2000; Supreme Court Decision 70Do1759, Sept. 29, 1970). However, as long as the crime of forging private documents is separately punished unlike the case of private documents, it cannot be deemed that the crime of forging private documents is established in the same form.

In addition, the subject of the crime of preparing false public documents is limited to a public official who has the authority to prepare the document, and a public official engaged in the duty to assist the preparation of the document is not the subject of the above crime. Therefore, if the assistant public official completes the public document with settlement made by the person holding the authority to prepare false public documents without knowledge of the fact, he/she shall be the indirect principal of the crime of forging false public documents. When the document is completed at his/her discretion without going through such settlement, the crime of forging false public documents is established (see Supreme Court Decision 81Do898, Jul. 28, 198, etc.).

In light of the facts acknowledged above in light of the above legal principles, the defendant drafted a modified agreement containing false contents, including the additional construction cost, without deliberation and resolution by the Military Welfare Management Committee, and completed the modified agreement with the approval of the person in charge of the executive director, who is not aware of such fact. Unlike the issue of whether the crime of preparing false public documents is established as an indirect crime, it cannot be deemed that the defendant is the crime of forging false public documents and uttering of forged public documents against the preparation and exercise of the modified agreement with the approval of the person with authority to prepare it, although it was made by deception of the defendant.

Therefore, the defendant's assertion of mistake or misunderstanding of legal principles is justified.

4. Conclusion

Of the facts charged in the instant case, the Defendant’s appeal as to the forgery of a public document and the uttering of a forged public document is with merit, and the lower court deemed that the crime of occupational breach of trust and the crime of occupational breach of trust are concurrent crimes under the former part of Article 37 of the Criminal Act and rendered a single sentence. As such, the lower judgment in its entirety is reversed under Article 364(6) of the Criminal Procedure Act without examining the Defendant’

From July 1, 2007 to June 30, 2012, the Defendant, working as the manager of the ○○○ Track Military Forces, which was located in Gangnam-si, and took overall charge of the management and operation of the facilities of the ○○ Track Military Forces. Around August 17, 2009 with respect to the installation of the ○ ○ Track Military Forces in the military unit, Nonindicted Company 1 and the “Nonindicted Company 1” of the Construction Business Corporation established with respect to the installation of the ○ ○ ○ Track Military Forces, failed to contribute the electronic leading cart system to the ○ ○ Track Military Forces, but the sum of the principal repayment amount paid by the flight group to Nonindicted Company 1 (the profits derived from deducting the financial expenses and management and operation expenses under the following) reaches the 1,008,000,000 won of the facility investment cost of Nonindicted Company 1’s operation and profit-making management of the ○ Mac Air Force.”

The Defendant, as the president of the physical training center, shall settle the profits from the Jeondong system system with Nonindicted Company 1 in accordance with the terms and conditions of the above agreement on August 17, 2009 (hereinafter “the first agreement”). In the event that the contents of the above agreement entered into between Nonindicted Company 1 and the victim Air Force ○○ (hereinafter “the victim Air Force ○”) are modified, the duty is to undergo deliberation and resolution by the Military Welfare Management Committee.

Nevertheless, on May 21, 2012, the Defendant, in violation of his duties, arbitrarily changed the Agreement on the Operation and Management of the Electronic Track System between the Air Force ○○○ Operation Group and Nonindicted Company 1 to Nonindicted Company 1’s “1,127,000,000,000 additional construction cost required by Nonindicted Company 1 Company 1” as “19,000,000,000 additional construction cost,” without undergoing deliberation and resolution by the Incidental Welfare Management Committee at the office of the above physical training center (hereinafter “amended Agreement”), and on May 31, 2012, the Defendant, unlike the contents of the Agreement on the Operation and Management of the Electronic Track System at the office of the above physical training center, calculated KRW 119,08,00 from Nonindicted Company 1’s representative director and Nonindicted Company 2 to Nonindicted Company 1’s representative director of the said Agreement to Nonindicted Company 1’s “1,27,000,000 won.”

Accordingly, as of December 31, 2014, the Defendant obtained property benefits equivalent to KRW 289,20,755, which is the difference between KRW 1,008,00,000 from the facility investment cost under the first agreement and KRW 580,100,203, and the amount of the principal repaid, from KRW 427,89,79,797, and from KRW 1,127,00,000,00 from the facility investment cost under the content of a voluntary revision agreement written by the Defendant and KRW 409,89,448, which is the difference between the repayment balance of KRW 717,10,52, and the repayment balance of KRW 289,20,755, which is the difference between the repayment balance and KRW 717,100,52.

Since the judgment of the court below is the same as the summary of evidence, it shall be quoted in accordance with Article 369 of the Criminal Procedure Act.

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

Articles 356 and 355(2) of the Criminal Act; the choice of imprisonment

1. Suspension of execution;

Article 62(1) of the Criminal Act

1. Social service order;

Article 62-2 (1) of the Criminal Act

On the record, no circumstance is found that the Defendant obtained any benefit from the instant crime. The Defendant was serving in the Air Force for a period of 25 years, and was discharged from active service. However, there is no criminal history prior to the instant crime. However, even though the Defendant, as the president for the management of the physical training center of the instant flight group, was in a position to promote the interests of the instant flight group, the Defendant committed the instant crime. Nevertheless, without any reflection against his fault, he committed the instant crime, and only took appropriate measures to prevent the damage of Nonindicted Company 1 and to preserve profits from the investment cost. Not only is the amount of the victim’s property damage caused by the Defendant’s occupational breach of trust is reasonable, but also is still not available from the victim. In addition, the Defendant’s age, character, environment, family relationship, motive and circumstance of the instant crime, and circumstances after the crime, etc. are considered as the condition for sentencing, and thus, the Defendant is sentenced to the sentence identical to the disposition of the Defendant.

The summary of this part of the facts charged is as stated in the above 3.A. B. This constitutes a case that does not constitute a crime as stated in the above 3-B., and thus, the acquittal is rendered in accordance with the former part of Article 325 of the Criminal Procedure Act and the summary of the acquittal part of the judgment is publicly notified in accordance with Article 58(2) of the Criminal Act.

Judge Lee Jae-sung (Presiding Judge)