(영문) 창원지방법원 2014.7.17.선고 2014고합108 판결

Defendant shall be punished by imprisonment with prison labor for four years and by a fine for 60,000,000 won. If the Defendant fails to pay the above fine, the Defendant shall be confined in the workhouse for a period calculated by converting KRW 100,000 into one day.

2,000,000 won shall be additionally collected from the defendant.

Reasons

Criminal facts

From February 22, 2013 to February 5, 2014, the Defendant is a public official who has been in charge of permission for freight forwarding business under B.

1. Since 2004, the new permission for the freight forwarding business, which is divided into three categories, such as ‘director', ‘general', and ‘general director', has been limited and it is possible to transfer and acquire the license among individuals, the above three categories of permissions were traded at a price higher than that of other two categories. The Defendant conspired to modify C, which operates the freight forwarding business under the trade name of ‘X', to intermediate the freight forwarding business, and to issue a new truck forwarding business license by changing the column for the use of the normally issued truck forwarding business license, or issuing a new truck forwarding business license.

At the end of September 2013, the defendant opened a computer of the defendant's office in B office, changed "D" shipping business license file into "general cargo" and printed out a license certificate into "general cargo", and affix a seal in the name of the Y market which is kept in the register of the permitted civil petition.

As above, the Defendant, in collusion with C, forged the permit for trucking transport brokerage business under the name of the Y market, an official document without authority, and forged the official document in Chapter 23 via 19 times in total as shown in the attached list of crimes.

2. Violation of the Act on the Aggravated Punishment, etc.;

On September 10, 2013, the Defendant: (a) transferred KRW 1 million from C to the Defendant’s bank account (E) around September 10, 2013; (b) received KRW 40 million in cash at the entrance of a fluorial tree outside of Kimhae-si on December 2, 2013; and (c) around January 22, 2014, the Defendant received KRW 1 million in cash at a restaurant.

As above, the Defendant received a bribe of KRW 42 million in total with respect to such duties and received it, and committed unlawful acts as referred to in the above paragraph (1).

Summary of Evidence

1. Defendant's legal statement;

1. Each police statement of F, G, H, I, J, K, K, L, M, N, P, Q, R, T, and U respectively;

1. Requests for investigation;

1. Notification of transfer, acquisition or acceptance of a freight forwarding business;

1. Each investigation report (including accompanying documents);

Application of Statutes

1. Article applicable to criminal facts;

Article 2(1)3 of the Act on the Aggravated Punishment, etc. of Specific Crimes, Articles 131(1) and 129(1) of the Criminal Act (absents after acceptance of bribery and a comprehensive imposition of fines pursuant to Article 2(2) of the Act on the Aggravated Punishment, etc. of Specific Crimes), Articles 225 and 30 of the Criminal Act (absenting of official documents)

1. Commercial competition;

Articles 40 and 50 of the Criminal Act (see, e.g., Supreme Court Decision 2000Do1216, Feb. 9, 2001)

1. Discretionary mitigation;

Articles 53 and 55(1)3 and 6 of the Criminal Act

1. Detention in a workhouse;

Articles 70(1) and 69(2) of the Criminal Act

1. Additional collection:

Article 134(1) of the Criminal Act provides the reasons for sentencing.

1. Application of the sentencing criteria;

[Determination of Punishment] Type 3 (not less than 3 million won but less than 5 million won) of the acceptance of bribe (Special Aggravations) / Illegal Measures related to the acceptance of bribe

[Recommendation and Scope of Recommendation] Aggravation, 4 years to 6 years

【General Aggravations】 Business Relations

2. Determination of sentence: Imprisonment with prison labor for 4 years and fine of 60,000,00 won for the crime of this case, the defendant, who is a public official, received money and goods from C that intermediate the freight forwarding business and the permission for freight forwarding business by taking advantage of his status, and forged the permission for freight forwarding business, which is one of his duties, and severely undermines the integrity and fairness of the public official's performance of duties and the general trust thereon, and thus, the nature of the crime is very heavy; the amount of money and goods received by the defendant is the maximum amount of KRW 42,00,000,000,000 for the crime of this case; the defendant brought disturbance to the market for freight forwarding business; accordingly, multiple victims who have taken over the forged permission have been injured.

On the other hand, the fact that the defendant both led to the confession of the crime and reflects against the defendant, that the defendant returned 40 million won out of the amount of the accepted acceptance at C's request and the actual amount of profit is less than the amount of the accepted acceptance, that the defendant seems to have performed his duties without any particular error except that he received reprimand twice from around August 197 to about 19 years, and that the defendant has no record of punishment heavier than that of the same kind of crime or fine.

In each of the above circumstances, the punishment as set forth in the Disposition shall be determined by taking into account all of the following factors, including the Defendant’s age, character and conduct, environment, motive, means and consequence of the instant crime, the conditions of sentencing as shown in the argument of the instant case, and the scope of recommended sentencing guidelines.

Judges

The presiding judge, judge and senior citizens;

Judges Cho Jong-soo

Judges Yellow Jin-jin

Note tin

1) The prosecutor asks the defendant to collect 42 million won from the defendant. However, the person who received the bribe return the bribe to the receiver.

The defendant is in custody of the money received as it is, since it can not be collected from the consignee.

If it has been returned to the donor, it shall not be collected from the defendant since it would be confiscated or collected from the donor.

The record reveals that the Defendant was present from the Seochoman C on December 2013, 2013 (see, e.g., Supreme Court Decision 83Do2783, Feb. 28, 1984).

There is a statement that the recipient received KRW 40 million in gold, and that he returned it as it was received at C’s request on February 2014.

In addition, from January 4, 2014, the defendant was unable to consume the above KRW 40 million as he was hospitalized in the hospital from January 4, 2014, and the defendant was found to have been unable to consume the above KRW 40 million.

The method of return, even by which the defendant's identification was made, shall also be deemed to have been kept by C with the money in custody of the defendant's head of the office.

Since the return was made, it is difficult to view that the above KRW 40 million is subject to additional collection on the sole basis of the evidence submitted.