(영문) 부산지방법원 2015.2.13.선고 2014고합618 판결

Defendant A’s imprisonment with prison labor of five years and a fine of 105,00,000 won; Defendant B’s imprisonment with prison labor of three years and six months and a fine of 50,000,000 won; and Defendant C’s imprisonment with prison labor of one year. Where Defendant A and B fail to pay each of the above fines, the above Defendants shall be confined in the workhouse for the period calculated by converting KRW 300,000 for Defendant A and KRW 20,000 for Defendant B into one day.

However, with respect to Defendant C, the execution of the above sentence shall be suspended for two years from the date when this judgment became final and conclusive. KRW 65,000,000 from Defendant A, and KRW 40,000 from Defendant B, respectively, shall be collected. As to Defendant A and B, each of the above fines and additional charges shall be ordered to be paid provisionally.

Reasons

Criminal facts

Since May 2006, Defendant A worked as the head of the K Housing Redevelopment Development Project Association (hereinafter referred to as the “Association”) located in the Busan Northern-guJ from around May 2006, and represent the Association and exercise overall control over the affairs of the Association. Defendant B is the operator of the real estate development business (ju)L, who holds the claim amounting to KRW 80,000,000 against Defendant A, and Defendant C is the operator of the (jum) management company.

1. When Defendant A and Defendant B were unable to obtain the above debt due to Defendant A’s failure to perform the above obligation for a long time, etc., Defendant A and Defendant B offered to Defendant A a subcontractor for landscaping construction works, that Defendant A act as a broker for a subcontractor for landscaping construction works, that Defendant A act as a broker for a subcontractor for landscaping construction works, and that he/she shall pay the above physical performance by receiving the payment from the subcontractor, and that Defendant A consented to it. On October 201, 201, Defendant A would be able to accept the landscaping construction works through (State) through (State) through (State) the head of the association, which would be able to receive the payment, and Defendant A would be able to receive the payment from the subcontractor for landscaping construction works. Defendant A conspired to receive the payment from the subcontractor for landscaping construction works.

The Defendants received KRW 50,000,000 in return for the referral of a subcontractor for landscaping construction work at the (ju) LL office of Defendant B located on the 3th floor of Busan East-gu P around November 1, 2011, from the Defendants, according to the above public offering.

As a result, the Defendants conspired with C to receive a bribe in relation to the duties of the redevelopment and consolidation project leader who is deemed as public officials after receiving KRW 50,000,000 in return for the arrangement of landscaping project subcontractors.

2. The sole criminal conduct of Defendant A;

The Defendant received KRW 50,000,000 from C as stated in paragraph (1), but the Defendant used the state in which M was not yet selected as a subcontractor for landscaping construction works, and used it as a state in which C receives more remuneration from the subcontractor.

On June 5, 2012, the Defendant: (a) received KRW 50,000,000 from C in a C’s vehicle parked on a road adjacent to the Seocheon-dong located in Busan Northern-dong; (b) around August 2012, the Defendant received KRW 3,00,000 from R hotel coffee located in Q in Busan-gu; (c) around August 27, 2012, the Defendant received KRW 1,00,000 from the Busan-gu Busan-gu Busan-si bank account; and (d) received KRW 1,00,000,000 from the Busan-gu Busan-gu Tcafeteria around November 29, 2012. Accordingly, the Defendant received KRW 5,500,000 in return for intermediary services for landscaping construction contractors, and received the bribe from C as a public official in relation to the redevelopment and improvement project partnership’s duties deemed as a public official.

3. Defendant C.

The Defendant granted a bribe in relation to the duties of the president of redevelopment and rearrangement project association deemed public officials by granting a total of KRW 105,00,000 to A and B in return for the arrangement of a subcontractor for landscaping project, at the same time and place as described in paragraphs 1 and 2.

Summary of Evidence

1. Each legal statement of the defendant A and B

1. Defendant C’s legal statement

1. Each police statement concerning U and V;

1. Each certificate of borrowing, certificate of commitment, letter of commitment, certificate of content, certificate of all matters to be registered, all of the registered matters, deposit passbook, copy of deposit passbook, detailed statement of deposit transactions, statement of construction contract, and details of account transactions;

1. Application of Acts and subordinate statutes to each investigation report (a list of evidence Nos. 27,37,41, 53, 55, 59);

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

○ Defendant A: Article 2(1)1 and (2) of the Act on the Aggravated Punishment, etc. of Specific Crimes; Article 129(1) of the Criminal Act; Article 84 of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents; Article 30 of the Criminal Act (generally, choice of imprisonment and concurrent punishment

b. Defendant B: Article 2(1)2 and (2) of the Act on the Aggravated Punishment, etc. of Specific Crimes; Article 129(1) of the Criminal Act; Article 84 of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents; Articles 30 and 33

○ Defendant C: Articles 133(1) and 129(1) of the Criminal Act; Article 84 of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (Generally, Selection of Imprisonment)

1. Discretionary mitigation;

○ Defendant A and B: Articles 53, 55(1)3, and 6 of the Criminal Act (the following consideration of favorable circumstances among the reasons for sentencing)

1. Detention in a workhouse;

○ Defendant A: Articles 70(1) and (2) and 69(2) of the Criminal Act

○ Defendant B: Articles 70(1) and 69(2) of the Criminal Act

1. Suspension of execution;

○ Defendant C: Article 62(1) of the Criminal Act (The following extenuating circumstances among the reasons for sentencing)

1. Additional collection:

○ Defendant A and B: The latter part of Article 134 of each Criminal Code

1. Order of provisional payment;

○ Defendant A and B: Article 334(1) of the Criminal Procedure Act

[Defendant A asserts that the duty of selecting a contractor for landscaping projects is not related to the duties of Defendant A, the president of the partnership. Article 129 of the Criminal Act refers to not only a public official’s duty under the control of law, but also an act closely related to his/her duty, or an act of practice or actual duty under his/her jurisdiction and an act of assisting or influencing the decision-making authority (see Supreme Court Decision 2010Do10910, Dec. 23, 2010). In full view of the contents of the housing redevelopment project contract contract for the instant housing redevelopment project, the relationship between the implementer and the contractor, and the role and authority of the president of the partnership in the housing redevelopment project, the duties of Defendant A, the president of the partnership, shall be the contractor.

It is reasonable to view that it constitutes a job act that may substantially affect the process of selecting a subcontractor for landscaping projects of a corporation. [Defendant A, the amount of KRW 50 million received on or around November 18, 201, and KRW 50 million received on or around June 5, 2012, cannot be assessed as a comprehensive bribery act that has no criminal identity and continuity, and cannot be assessed as a single comprehensive bribery act. However, the above amount of KRW 50 million received on or after the fact that it was intended to give a subcontract for construction of a new structure, and that the above amount of KRW 50 million received on or after the fact that it was intended to give a subcontract for construction of a new structure in addition to the above new structure, it is reasonable to view that each of the above KRW 50 million was the same for the selection of a new contractor for landscaping projects. Although Defendant C was provided with a prior consideration, it is reasonable to consider that only KRW 50 million was paid in advance to Defendant C, it is more than the total amount of KRW 50 million.

[Defendant B asserted to the effect that it is only an aiding and abetting offender in relation to the crime of Paragraph (1) of the judgment. However, Defendant B arranged to receive the existing loan claim from Defendant A with Defendant C, the amount of the bribery amount was primarily adjusted between Defendant A and Defendant C, and the participation was made as the observer at the time of the preparation of the loan certificate. In light of the above Defendant B’s behavior attitude and the degree of participation, since functional control based on the intention of joint processing can be recognized, Defendant B is reasonable to view it as a co-principal of the above crime.] The reason for sentencing is for sentencing.

1. The scope of punishment;

○ Defendant A: Imprisonment of 5 years to 15 years, and fine of 105,00,000 to 262,50,000 won: Imprisonment of 3 years to 15 years, and fine of 50,000 to 125,000,000 won; Defendant C: Imprisonment of 5 years or less;

2. Scope of recommendations;

○ Defendant A

【Determination of Punishment】

- Bribery, acceptance of bribe, type 5, not less than KRW 100, not more than KRW 500,000

[Special Aggravations] - Aggravations: positive requirements

【Scope of Recommendation】

- 9 years to 12 years (aggravated area) imprisonment;

○ Defendant B

[Determination of Punishment] Bribery, Acceptance of Bribery, Type 4 (at least 50 million won, less than 100 million won)

[Special Aggravationd Persons] Aggravationd : positive requirements

【Scope of Recommendation】

- Imprisonment of up to 6 years up to 8 years (up to 8 years);

○ Defendant C.

【Determination of Punishment】

- Bribery, offering of a bribe, type 4, not less than KRW 100, not more than KRW 500,000

[Special Contributors] - Reductions: If the consignee complies with the affirmative demand of the receiver, self-denunciation or internal corruption;

- Aggravations: Where the contents of solicitation are related to illegal or unlawful operations;

[General Convicts] - Reductions: Serious reflects

【Scope of Recommendation】

- Imprisonment of up to 2 years up to 3 years (restricted areas);

3. The offense of this case is deemed to have been committed by Defendant A, the president of the Housing Redevelopment and Improvement Project Association, in collusion with Defendant B, the president of the housing redevelopment and improvement project, to receive a bribe from Defendant C, the representative of the landscaping enterprise seeking to receive a subcontract for the landscaping project. Since the president of the association has various authority, such as operating a huge project fund in the future, etc., it is highly likely that the occurrence of corruption may occur due to the failure between the president of the association and the construction company. As such, it is highly necessary to secure the transparency and public nature of the rearrangement project because it is directly connected to the damage of the association and its members, such as an increase in the construction cost and an unequal contract, etc. related to the rearrangement project under the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents, such as an increase in the construction cost and an unequal contract, etc., and thus directly affects the community and the nation. Nevertheless, Defendant A and B received a large amount of amount of money from Defendant C, and actually, the head of the association made a request for active implementation of the landscape project.

However, Defendant C is against the confession of the crime of this case while informing the investigative agency of this case, and in particular, the number of Defendants is against the confession of the crime of this case, and there is no record of punishment for the same crime, Defendant A and B are over 68 years old, Defendant B is not a good condition of health, Defendant B is not actually selected as a landscaper, and Defendant A is deemed a public official pursuant to the law and regulations, and Defendant B is not deemed a public official, and Defendant B is not deemed a public official. Thus, the crime of bribe of public official is not in the position of public official, considering all the circumstances such as the character and conduct of the Defendants, environment, family relationship, motive for the crime, circumstances after the crime, etc., the lower limit of the recommended sentence according to the sentencing guidelines shall be determined lower than the recommended sentence according to the sentencing guidelines.

The acquittal portion

1. Summary of the facts charged

On June 5, 2012, Defendant B conspired with C to arrange a subcontractor for landscaping construction works, and received 50,000,000 won under the same name in C’s vehicle parked on the nearby road in the Busan Northern-dong, Busan Northern-dong, and received a bribe in connection with the duties of the redevelopment and improvement project owner deemed public officials.

2. Determination

Defendant B consistently participated in the investigation agency’s portion of KRW 50,00,000 that was received on November 18, 201, while Defendant B was not involved in the investigation agency’s portion of KRW 50,00,000 that was received on June 5, 2012. However, in full view of the following circumstances acknowledged by each of the above evidence, the evidence submitted by the prosecutor alone is insufficient to deem that Defendant B conspired in advance with respect to KRW 50,00,00 that was received by Defendant A on June 5, 201, and there is no other evidence to prove otherwise.

① Defendant A demanded that Defendant B obtain money from Defendant C to repay the remainder of his/her obligation, and argued that “A will come to the degree of KRW 50 million as he/she did so.” However, Defendant C stated that there was no contact with Defendant B before June 5, 2012. Defendant C provided first-lane KRW 50,000,000 with Defendant B and W once every month. On June 3, 2012, Defendant A confirmed the progress with respect to landscaping work. Defendant C did not attend the meeting of Defendant B on the place where Defendant C met with the head of the on-site office of 0 corporation, with Defendant C. In addition, Defendant B did not receive KRW 15,500,000,00,000 from Defendant A and the Defendant, even though there was no specific contact between Defendant C and the Defendant, Defendant C did not receive money from Defendant C and did not receive money from 50,000,000 won from his/her office.

③ There is a interval of about 7 months between the time of receiving KRW 50 million for a two-lane and the time of receiving KRW 50 million for a single-lane. However, there is no difference between the time of receiving KRW 5 million which is prosecuted for a single-lane of Defendant A, and the time of receiving KRW 5 million which is not less than 2 months. The facts charged are more close to the time of the single-lane of Defendant A than the co-principal of Defendant A.

④ Defendant B provided that Defendant A provided that “I shall pay the money as soon as he/she receives or borrowed the money from Defendant C,” but it is insufficient to view Defendant B as having functional control over the crime of bribery solely on the ground that he/she said money was given.

3. Conclusion

Therefore, the above facts charged should be pronounced not guilty under the latter part of Article 325 of the Criminal Procedure Act because it falls under a case where there is no proof of a crime. However, as long as the court found the defendant guilty of violating the Act on the Aggravated Punishment, etc. of Specific Crimes (Bribery) in the relation

Judges

Judge of the presiding judge;

Judges Park Jong-chul

Judges Shin Dong-dong

Note tin

1) The indictment is written in relation to the duties of the public official, but the defendant A is the head of redevelopment and improvement project partnership as the urban area and maintenance and improvement project plan.

The public official is deemed to be a public official under Article 84, and this part is likely to seriously disadvantage the defendant's exercise of his right to defense.

ex officio correction is made as above. The same shall apply hereinafter.

심급 사건

부산지방법원 2015.2.13.선고 2014고합618

-부산고등법원 2015.8.27.선고 2015노173

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-도시 및 주거환경정비법

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-형법 제30조

-형법 제33조