(영문) 서울고등법원 2014.7.25.선고 2014노615 판결

A) The first time of the acceptance of a bribe by the Defendant is not January 28, 2011, but around March 201, rather than March 2011. The Defendant was selected as a member of the design deliberation and evaluation committee for the construction work of the Gyeongbuk-do Office and the construction work of the Council Office (hereinafter “instant construction work”). While receiving KRW 49,500 from Q, who is an employee of the Treatment Construction, the first time of the acceptance of a bribe, the Defendant immediately returned the said KRW 49,500 on January 30, 201, which was after this frame, and received the said KRW 49,500 from Q around March 201, the time of the acceptance of a bribe ought to be considered as around March 2011.

B) On February 18, 201, the deliberation and evaluation of the design of the instant construction project was completed on and after the expiration of the period, and the status of public official as the “design Deliberation Committee and Evaluation Committee member” was extinguished. Therefore, even if the Defendant was commissioned as a member of the Local Construction Technology Deliberation Committee’s design deliberation committee from January 1, 201 to December 31, 2012, the Defendant was disqualified from the status of the said “Design Deliberation Committee member” and around March 2011, and around September 201, and thus, the Defendant cannot be punished as a general bribery, not a ex post facto bribery. Article 2 of the Act on the Aggravated Punishment, etc. of Specific Crimes (hereinafter “Special Act”) provides that the subject of the instant construction project shall not be punished as a person who committed a bribery under Article 129, 130 or 132 of the Criminal Act, and Article 31 of the Criminal Act shall not be punished as a person who committed a bribery.

2) The assertion that each of the instant bribery acts is in a substantive concurrent relationship

The defendant's act of acceptance of bribe over two occasions is difficult to see that the criminal intent, method of crime, legal interest in damage, etc. are identical, and there is no time and place relationship between crime and crime, and it is not a comprehensive crime but a substantive concurrent relation.

B. Unreasonable sentencing

The sentence of the court below against the defendant (the imprisonment of three years and six months and the fine of 86 million won) is too unreasonable.

2. Judgment on misconception of facts or misapprehension of legal principles

A. Determination as to the assertion that Article 2 of the Act on Special Cases cannot be applied

In light of the evidence duly adopted and examined by the court below and the following circumstances revealed by the above evidence, the defendant's defense counsel's assertion that Article 2 of the Aggravated Punishment Act cannot be applied to each act of bribery of this case is without merit.

1) Legal principles pertaining to the first time of acceptance of bribe by the Defendant, which is not January 28, 2011, but March 201, 201.

The acceptance of a bribe refers to the acceptance of money and valuables with the intention of acquiring it, and thus, a bribe is a bribe.

If it is recognized that a bribe was received after being aware of the fact that it was a bribe, or immediately returned the bribe, or that there was no intention to obtain it by temporarily keeping the bribe in the future as an intention to return it in consideration of the opportunity to return it, the acceptance of the bribe may not be deemed to have been made. On the other hand, even if the defendant returned the bribe after receiving it with the intention to acquire it, it does not affect the establishment of the crime of bribery. On the other hand, in determining whether a bribe was received with the intention to acquire it, the circumstance of the receipt of the bribe, whether the bribe was not returned at any time, and the circumstance of returning the bribe shall be considered (see Supreme Court Decision 2010Do6504, Aug. 23, 2012).

B) Determination

According to the evidence duly adopted and examined by the court below and the court below, the defendant returned to Q 49,500 oil from January 28, 201, and around January 30, 2011, it is recognized that the defendant had received it again on or around March 30, 2011, but on the other hand, considering the following circumstances known by the evidence, it is recognized that the defendant received 49,500 oil with the intention to obtain it on January 28, 2011, and therefore, it is reasonable to view the first time of acceptance of bribe of the defendant as January 28, 2011.

(1) On January 28, 201, the Defendant received money without refusing Q Q to accept it (2) after having offered Q and snish meals. Accordingly, the crime of bribery became final and conclusive.

(2) On January 30, 201, the Defendant returned the said money to Q from the prosecution around January 30, 201, the Defendant stated to the effect that “Around January 30, 2011, Q returned the money to Q as follows: “A person who appears after the deliberation;” and “I am after the deliberation,” stated to the effect that “I would like to make a fair decision, and I would like to think that I would not be able to give money as a reward for the outcome of the construction of Medical Treatment.” However, in the absence of the Defendant’s intent to receive the said money, Q would not be called “after the deliberation,” and Q would not accept the said bribe as the Defendant’s intention to return it.4).

(3) The Defendant, upon completion of the design deliberation and evaluation of the instant construction project, delivered Q Q 49,50 pages again on March 201, and received them naturally. Such attitude of the Defendant cannot be deemed to be the attitude of a person who returned a bribe without the intention of acquisition. Rather, such an act of the Defendant appears to be the attitude of a person who returned a bribe that was temporarily left at the time of the completion of the design deliberation and evaluation.

2) Determination as to the assertion that the Defendant’s status as public official was extinguished at the time of the instant acceptance of bribe

A) Relevant provisions

(1) The former Enforcement Decree of the Construction Technology Management Act (amended by Presidential Decree No. 11180, Jan. 17, 2012) and the former Enforcement Decree of the same Act (amended by Presidential Decree No. 23248, Oct. 25, 2011) shall be comprised of not more than 250 members (in the case of the Special Metropolitan City, 300 members), including one chairperson and one vice-chairperson (Article 5 of the former Act; Article 19(1) of the Enforcement Decree of the same Act). (2) The members of the Local Construction Technology Deliberation Committee shall be appointed or commissioned by the head of the local government from among the persons recommended by the Central Committee, other local governments, the Special Committee, the Advisory Committee, or the relevant non-governmental organizations, and experts in the relevant field (Article 19(3) of the Enforcement Decree of the same Act). (3) The Local Construction Technology Deliberation Committee may organize and operate a design deliberation subcommittee to deliberate on the eligibility of designs and the evaluation of design points, etc. (Article 19(2).).

B) Determination

(1) According to the above relevant provisions, a person who is appointed or commissioned by the head of a local government as a member of a local construction technology deliberation council or a member of a local council shall obtain from that time the status of a public official, who is the subject of the crime of bribery under Article 129 of the Criminal Act, and only when he/she is selected as a design deliberation and evaluation committee for a specific construction work, does not constitute a public official

(2) Since the fact that the Defendant was commissioned as a member of the Local Construction Technology Deliberation Committee from January 1, 2011 to December 31, 2012, the Defendant also recognized the fact that the Defendant was commissioned as a member of the Local Construction Technology Deliberation Committee’s design deliberation, as long as the Defendant received each of the instant bribe around January 28, 2011 and September 201, within the above promotion period, it is deemed that the Defendant had the status considered as a public official at the time of receipt of the instant bribe.5)

(3) On November 28, 2013, Supreme Court Decision 2013Do1011 Decided November 28, 2013, the defendant's defense counsel argues that the defendant cannot be deemed a public official any longer after he loses his status as a member of the design deliberation and evaluation committee for the portion of the construction work performed by the construction work of this case. However, the above Supreme Court Decision stated that "where a public official performs other duties through separate commissioning procedures, etc., and receives money and valuables in relation to the previous duties performed after the commission is completed, it shall not be punished as a general bribery." Thus, as in this case, it is inappropriate to invoke this case since it differs from the case where a bribe is received during the commission period.

B. Determination as to the assertion that each of the acceptance of bribe in this case is in a substantive competition relationship

1) The judgment of the court below

In light of the following facts and circumstances, the lower court determined that it is reasonable to view that the Defendant’s each act of acceptance of bribe in this case constitutes a single crime, including the act of acceptance of bribe in this case.

A) On or before February 18, 201, the date of design deliberation and evaluation of the instant construction, Q has been stating to the Defendant that “one more time after the deliberation will be added.” As such, the Defendant had already been promised to give an additional bribe from the offerer prior to entering a specific duty with a quid pro quo relationship with the acceptance of bribe.

B) On September 201, Q made a demand for the performance of a promise to additionally grant a bribe to Q to Q to the effect that Q would have been promised as above, and that Q would have been “one more bribe to be given to the Defendant,” even from R, who is another employee of the Treatment Construction, and that Q would not have been distorted to the effect that Q would have made a bribe more at the same time.”

C) Each of the instant bribery acts was the price for duties related to a specific matter of the design deliberation and evaluation of the instant construction work.

2) Determination of the immediate deliberation

In the event that a single and continuous criminal committed the same kind of crime repeatedly for a certain period and the legal benefits of the same are the same, each crime shall be deemed to be a single comprehensive crime. If a single and continuous criminal committed the same kind of crime repeatedly for a certain period and the legal benefits of the same are the same, the one who received the money is extended to a considerable period of time and the money is received.

Even if there exists a considerable period of time, each crime shall be deemed a single comprehensive crime (see, e.g., Supreme Court Decision 9Do4940, Jan. 21, 2000).

In addition to the above circumstances acknowledged by the court below, the court below’s decision on this part is justified.

A) First, the Defendant’s defense counsel held that “the Defendant had not been promised to give additional bribe from the side of Daewoo Construction before February 18, 201, which was the date of the design deliberation and evaluation of the instant construction work.” The Defendant asked that “one additional bribe from September 201 to Q would not be any longer?” The Defendant’s defense counsel’s assertion is without merit in light of the Defendant’s statement, Q, and R, as seen below, is known to have two bags at the Defendant’s Treatment Construction Head Office from R, who is the employee of the Defendant’s interest and Treatment Construction, and that there was a difference in Q as the Defendant’s misunderstanding, one additional one was tried to arrange the mixing between the Defendant’s construction and receipt of the bribe, and that Q did not urge Q to perform the promise to give additional bribe.” However, in light of the Defendant’s statement, Q, and R, etc., the Defendant’s defense counsel’s assertion is without merit.

(1) The Defendant, upon receiving a series of investigations at the prosecution, stated consistently and clearly to the effect that "at the time is not accurately memory, but Q has made an indication that "at the time after the first bribe is added," while giving the first bribe," and that this was recognized in the court of original instance (On the other hand, the Defendant did not promise to receive Q from the beginning at the court of original instance to receive an additional amount of 50,000 square meters)," and reversed the statement at the prosecutor's office and the court of original instance to the effect that "at the beginning, the Defendant did not have promised to receive an additional amount of 50,000 square meters from Q from the beginning." However, there was no reason to obtain the reversal of the statement, and it is difficult to believe it as it is in light of the Defendant's existing prosecutor's office and court of original instance, etc.

(2) Q made a statement at the prosecution that “I would give to the defendant more than KRW 100 million after the first deliberation.” However, in the third investigation by the prosecution, Q responded to the prosecutor’s question, “I would like to have a difference in memory? I would like to say that I would like to say that I would give more 100 million won after the deliberation.”

(3) In the prosecution, R also stated to the effect that "the defendant is aware that two main offices were delivered to the defendant", and that "at the time Q made the statement to the effect that "at the time, Q had a statement to the effect that "at the time, Q had a statement to the effect that Q would give an additional one to the defendant, it would have caused the defendant to give him a statement to the mind that Q would give him a sense."

B) Next, the Defendant’s defense counsel argues that “ Q offered the second bribe to the Defendant is merely a disposal of the said bribe by offering it to the Defendant that he had refused to deliver it to U.S., and that “the first bribe of this case is not the cost of receiving the instant bribe, such as the first bribe of this case, but the first bribe of this case, even if it was given in consideration of the contract price for the instant construction work, its purpose is completely different from the first bribe of this case.” However, in light of the respective statements of the Defendant and Q, etc. examined below, the above assertion is without merit. (1) The Defendant stated at the prosecutor’s office that “It is true that Q received approximately 10,000 U.S. dollars in relation to the selection of the contractor from Daewoo Construction.” (14) Q also stated in the court of first instance that “where the second delivery of money to the Defendant, there was no other business of the Defendant’s construction work except for the construction work of this case, and there was no other business place, and only the construction work of this case.”

(2) As to the circumstances in which Q offered the second bribe in the prosecution, it stated in detail that “The treatment construction already ordered the instant construction work, even though it had already been ordered to do so, he promised to give more time to the Defendant before the first deliberation, and that Q has given additional money to the Defendant in order to implement the commitment in a way that he had been able to talk about twice to the extent that communication had been excessive on the part of the Defendant.”

C) Furthermore, even if this part of the facts are identical to the Defendant’s defense counsel’s assertion, in light of the aforementioned legal principles, the conclusion that a single comprehensive crime is established is not different since the Defendant’s receipt of a bribe in sequence in relation to one’s business.

3. Judgment on the defendant's defense counsel regarding the amount of additional collection in the court below

A. Summary of the defendant's defense counsel's assertion

Around July 2012, the Defendant: (a) returned R to her treatment construction; (b) delivered 80 of the 100 pages of the 100 bribe which was received by the second, to R; and (c) such delivery constitutes a case where a person who received a bribe returns the bribe to the mineer. Accordingly, even if R arbitrarily used 26 of the above 80 note, it cannot be collected from the Defendant.

B. Determination

Examining the reasoning of the lower judgment and the following circumstances revealed by the evidence duly admitted and examined by the lower court and the lower court in light of the record: (a) the Defendant’s delivery of 80 copies of paper closure to R around July 2012 is nothing more than the fact that the Defendant delivered 500 copies of paper closure to R, and it is difficult to view that such delivery was returned to the mineer; and (b) the Defendant’s defense counsel’s assertion on this premise is without merit.

1) The defendant first stated at the prosecution that "I would like to return I would like to "I would return I would like to I would like to "I would like to pay I would return I would like to I would like to I would like to "I would like to use I would like to "I would like to return I would like to I would like to I would return I would like to I would like to I would like to I would like to "I would like to return I would like to I would like to I would like to I would like to "I would like to return I would like to I would like to I would like to the head office" at the third investigation of the prosecution. I would like to say that I would like to say "I would like to return I would like to I would like to I would like to use I would like to "I would like to return I would like to I would like to the head office", "I would like to return I would like to you would return I would like to I would like to you would return I would like to I would like you would like to correct I would return I would like you would like to 4800.".

2) At the prosecution, R also stated in the prosecutor's office that "at the summer of 2012, the defendant is going to go to the AK site office where the head office is the site manager, and I would use it after I am to go to the low. I would like to be uneasy." So I would like to know that I would like to know that I would receive 500 loys. So I would know, I would like to know." In the court of the first instance of the trial, I stated that "I would not have any memory that the defendant would return to the head office" and stated that "I would like to be returned to the head office", and I would like to make a statement to the effect that I would correspond to the above three times statement of the defendant's prosecutor's office.21).

3) In full view of the fact that ① the first bribe received by the Defendant was in the custody of R, ② the return of the bribe to Q Q that was issued to the Defendant, if the Defendant intended to return it, to R is natural, and ③ R did not return it to the Construction of Treatment for more than one year, the delivery of the bribe to R is merely merely a receipt of the bribe to R, and it is difficult to view that the Defendant’s delivery of the bribe to R was a return to the mineer.

4. Judgment on the assertion of unfair sentencing

After committing the instant crime, the Defendant voluntarily surrendered to the investigative agency after committing the instant crime, and appears to have an attitude to recognize and reflect the fact of acceptance of bribe, and the Defendant has no record of criminal punishment prior to committing the instant crime, etc., shall be considered as favorable to the Defendant.

However, the crime of this case was committed by the defendant as a member of the design deliberation and evaluation of the construction of this case, despite the duty of the defendant to perform the selection of the construction work in a fair manner, by accepting the bribe of approximately KRW 99,500 ( approximately KRW 150,000,000 in Korean Won) from the specific company two times in relation to the deliberation and evaluation of the design of the construction of this case, and thus, it seriously undermines fairness and fairness in the execution of the defendant's duties and its purchase and social trust; the amount of the bribe received by the defendant is large; the defendant was a large amount of bribe; the defendant actively demanded a bribe in the course of receiving the bribe of this case; the defendant was also demanding a bribe in the process of receiving the bribe of this case; the meaning of the defendant was reduced due to changes in the defendant's attitude at the trial; and the defendant's various conditions of sentencing as shown in the records, such as the age, character, environment, family relationship, motive for the crime, and circumstances after the crime, and thus, it is not recognized to be excessively sentenced to the above sentencing sentence.

Therefore, we cannot accept this part of the defendant's defense counsel's assertion on the grounds.

5. Conclusion

Since the appeal by the defendant is groundless, it is dismissed in accordance with Article 364 (4) of the Criminal Procedure Act. It is so decided as per Disposition.

Judges

Judges of the presiding judge, Yellow Judge

Judges Singing on Board

Judges Nam-yang

Note tin

1) The grounds of appeal are limited to the extent of supplement in case of supplemental appellate briefs not timely filed.

(c)

2) At the time, the Defendant refused that Q Q should not “on the face of a white bag” in the dry season, but this is fine, once received.

c) state that the said money was received as "(Evidence No. 1219 of the Record)" (Evidence No. 1219 of the record), so the said money at the time is a bribe;

It is recognized that it had existed.

(iii) evidence records No. 1,224

4) In the court of the first instance, Q Q kept money to the effect that “the Defendant is unable to receive the money at present,” on the above circumstances.

I understood to the purport that it would be changed (No. 7 of the examination protocol of witness on the second trial date of the trial).

5) Therefore, the first time of acceptance of bribe of the Defendant, as alleged by the Defendant’s defense counsel, is deemed to be around March 201.

The criminal liability of each of the instant bribery acts was committed within the given period during which the Defendant is regarded as a public official;

There is no difference between them.

6) Evidence records Nos. 1,173 (written statements), 1,191 (the first interrogation protocol of the prosecution), 1,226 (the second interrogation protocol of the prosecution)

No. 1,289 (Examination of Suspected Examination of Prosecutor No. 3), No. 1,361 (Examination of Suspected Examination of Prosecutor No. 4)

7) Trial records No. 3 of the third trial date of the party trial

8) Evidence No. 1,003

(ix)1,295 of increased records;

10) Evidence No. 1,303

11) Meanwhile, Q did not have any fact that Q appeared as a witness in the trial court and there was no fact that Q would give more time to the defendant after the deliberation.

(b) re-revision the statement to the effect that “the statement was modified,” and as to the circumstances in which the statement was modified;

There is no sufficient explanatory order (the second trial date of the trial of the party concerned, No. 10, 11).

12) Evidence No. 1,342 pages

13) Meanwhile, at the time when R appears as a witness in the court of the first instance to the effect that "the defendant is present at the court of the first instance to add one to Q and to the defendant."

I do not directly have a finite finite finite finite finite finites to be provided with the Defendant’s shares from India or Q.

R made a statement that is somewhat inconsistent with the prosecutor's statement. However, R will be additionally provided from Q to the defendant's share in Q.

"Treatment Construction" for the reasons why the defendant said that he would receive a bribe in addition, even though he did not hear the opinion that he would be expected to receive a bribe.

There was no additional contribution to that portion, and at that time there was no effort for Q to receive money from its head office at that time.

In addition, the relationship between the defendant and R was not only known that it is difficult to understand that it is "...."

In light of the foregoing, R’s above statement in the trial court is difficult to believe (in the third trial court trial, the third trial court’s protocol of examination of witness).

14) Evidence No. 1,232 pages

15) The examination of witness in the second trial date, No. 16.

16) Evidence No. 1,303 of the record

17) Evidence Nos. 1,192, 1,229 of documentary evidence records

18) Evidence No. 1,290

19) Meanwhile, the Defendant returned 80 of Chapter 500, around July 2012, to R around 500, and returned it to the head office in the court of the trial.

The Court stated that "(3) of the trial date of the third trial of the trial of the trial of the trial of the party concerned), but the defendant's three times's statements and compliances with them."

In light of R’s statement, all other circumstances, etc., it is difficult for the Defendant to believe that the above Defendant’s oral statement at the trial is in trust.

20) Evidence Nos. 1,075, 1,079, 1,344, 1,345 of the evidence records

21) The third court date, No. 4, 5, 11 of the examination of witness;

22) At the time of the first bribe received by the Defendant, the Defendant left 500 marbing 60 mars to R, and R exchange this to the Defendant.

The cycle was also set.

23) For this, the Defendant’s defense counsel was treated through R as the Defendant’s third party because the Defendant was unable to trust Q at the time.

state that the corporation was seeking to return a bribe, but R does not return the bribe to the Construction of Treatment for more than one year.

not only used but also used for personal purposes, and ② R has commenced an investigation into the prosecution, and upon the commencement of the investigation into the prosecution, the bribe.

In light of the fact that the defendant returned to Q Q who asserts that it is difficult to trust without returning it to the treatment Construction, etc., the defendant

The above assertion by defense counsel is not persuasive.

심급 사건

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