(영문) 서울고등법원 2017.8.24.선고 2016노3573 판결

The Defendant did not receive any solicitation from the representative director S of R (hereinafter referred to as "R") to allow Q Q to supply new PP to the representative director of Q Q (hereinafter referred to as " Q Q") for the reason that there was no motive to demand Q Q to waive the status of PP subject to preferential bargaining with respect to Q Q, and in fact did not make such demand with respect to T. Even if the Defendant made a speech that may be considered as such demand, T would only be based on its business judgment to waive the status of PP subject to PP subject to Q Q’s new P subject to preferential bargaining. Therefore, there is no causal relationship between the Defendant’s demand and the result that interfered with the exercise of the right to use T.

Nevertheless, the lower court found the Defendant guilty of this part of the facts charged and erred by misapprehending the relevant legal principles, thereby adversely affecting the conclusion of the judgment.

2) misunderstanding of facts and misunderstanding of legal principles as to the violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (Mediation)

The Defendant was actually employed as the president of the R’s project, and the Defense Acquisition Program Administration did not make a solicitation that the R would be selected as a supplier of the Z projects, AA projects, etc., or that the requirements of the R would be reflected in the supply of AB, P, etc. Even if the Defendant was requested by R to make the above solicitation, the Defendant did not constitute a crime of acceptance of good offices, since specific acts such as the date, time, place, mode of conduct, etc. at which the request was made, were not specified.

3) misunderstanding of facts and misunderstanding of legal principles as to the violation of AE-related Act on AE-Related AE-Related Act

After concluding an advisory contract with AE (hereinafter referred to as "AE"), the Defendant merely received advisory fees in return for providing advisory services, and did not receive a request from AG to a person in charge of the Defense Acquisition Program Administration to make a request from AE to designate as a defense material or to make a request to increase the ratio of indirect labor related to the power generation, etc. In other words, the Defendant does not receive money from AE in return for a request to a public official of the Defense Acquisition Program Administration. Even if the Defendant received the above request from AE, the Defendant does not receive money from AE in return for such request. Even if the Defendant received such a request, the Defendant did not specify the specific acts such as the date, place, and mode of conduct at which the request was made. Therefore, the crime of acceptance

4) Unreasonable sentencing

The punishment sentenced by the court below against the defendant (two years of imprisonment) is too unreasonable.

B. Prosecutor: Unfair sentencing

The sentence imposed by the court below against the defendant is too uneasible.

2. Determination

A. As to the Defendant’s assertion of misunderstanding of facts and misapprehension of legal principles on abuse of authority and obstruction of use

1) The judgment of the court below on this part

Based on the legal principles 1 of the judgment below, the court below found the defendant guilty of this part of the facts charged that the defendant interfered with the exercise of his right by allowing Q to waive the supply of new PP by abusing the authority of the Director of the Defense Acquisition Program Administration by abusing his authority.

A) In full view of the following circumstances, it is recognized that the Defendant received a request from R’s representative director S to request that the Defendant deliver new PP to him/her.

① From the prosecutorial office to the court of the court below, S consistently confirmed the result of the PP bid, and made a statement to the effect that it requested the Defendant to examine whether there is a way to deliver the PP at once by telephone.

② At the court of the court below, the Defendant and S agreed to deliver a new type PP in R, and S stated that it was the party to the lawsuit against the Defendant by making a phone call.

③ At the lower court, T took place with S on June 5, 2012, which was the day following the arrival of the Defendant. At that time, S stated that, at the time, S was said to have been a party to the political party to T, and the AI, which is a son, stated in the prosecution that T was consistent with this.

B) Comprehensively taking account of the following circumstances, the Defendant demanded to waive the delivery of a new type PP to T operating Q by abusing his official authority, and thus, it is recognized that T has waived the delivery of a new type PP.

① On June 4, 2012, in consistent with the criminal investigation agency to the lower court’s court’s order, T has consistently stated that the Defendant demanded that T to yield a new type of P on June 4, 2012, and the AI consistently stated that T would have received a demand from the Defendant to yield a new type of P after having come to the Defendant’s office, and that Q Q, who has invested considerable funds and time to receive a successful bid, made a preparation for production, appears to have no reason to waive the supply of a new type of P to the successful tender in the absence of the Defendant’s demand for a successful bid, and is recognized as having been in full view of the fact that the Defendant’s book in the book, “The Defendant’s normal performance of the contract is difficult to perform? The normal performance of the contract? The demand for the delivery of new type of P to the extent that the new type of P can yield is demanded / expropriation/B exemption from compensation for delay,” and thus, the Defendant’s demand for the delivery of T type of P.

② Q has produced a prototype of U-type P and was judged to meet the standards by conducting a P test. While an application for certification of a national defense quality management system for new type P was rejected, Q has obtained the certification of the original source of work in the vehicle line with AS landing level and flood test. Manufacturing equipment necessary for the production of a new type P was also purchased and installed. On December 16, 2010, Q has prepared to obtain a successful bid for new type P by investing a long-term amount of money, such as a long-term performance of supplying the same type AT to the first group of the Army first group of the Army on December 16, 2010. The AI of Q executive director also made statements corresponding thereto.

③ At the investigative agency and the lower court’s court, AL consistently and specifically stated to the effect that Qu was capable of delivering both the old and new type P within the payment period.

④ The Defendant requested, immediately after Q Q’s successful bid in the first order of both new and old type P and immediately after receiving the request from R to allow R to deliver the new type P, and immediately requested to the effect that Q would give rise to a private motive for receiving the request from R to deliver the new type P. The Defendant appears to have derived from the private motive for receiving the request from S.

⑤ On April 13, 2012, Q filed a lawsuit seeking the exemption of the former PP in 2011 with the Defense Acquisition Program Administration for the exemption of liquidated damages, and the Defense Acquisition Program Administration filed a lawsuit against the court to confirm the status of the counter-party to the contract on August 10, 201, when the revocation of the contract was promoted in relation to the supply of V in 2011. After that, the Defense Acquisition Program Administration notifies Q of the cancellation of the contract on August 16, 201, on the grounds that the performance of the contract was not performed on August 16, 2011, and the restriction of the qualification to participate in the bidding for six months as the improper businessman on October 19, 201, Q filed a lawsuit to revoke the qualification to participate in the court on October 17, 201 and received the suspension of execution, but Q consistently rejected the Defendant’s request without concerns that it would be subject to any disadvantage in the dispute and future bidding in the previous PP in 2011.

④ Even if the Defendant did not make the Defendant’s assertion that he would yield a new PP, even though the Defendant, the Chief of the Defense Acquisition Program Administration Justice, the representative of the delivery company to the Defense Acquisition Program Administration, would not directly go to the office of the Defense Acquisition Program Administration, and the Defendant would have caused considerable burden in maintaining the new PP supply contract.

7) Before demanding Q to waive the delivery of a new type P, the Defendant: (a) received a specific production plan from Q Q to verify whether Q Q’s new type P and old type P were equipped with the timely supply capacity; and (b) stated in the prosecutor’s office that the former type P only was made; (c) the Defendant was aware of the former type P only; and (d) was unaware of whether there was a new type P production capacity.

2) Determination of the immediate deliberation

A) In light of the spirit of the principle of substantial direct examination adopted by the Criminal Procedure Act, if there are special circumstances to deem that the first instance court’s determination on the credibility of a statement made by a witness of the first instance court was clearly erroneous in light of the content of the first instance court’s ruling and the evidence duly examined in the first instance court, or in exceptional cases where it is deemed significantly unreasonable to maintain the first instance court’s determination on the credibility of a statement made by a witness of the first instance court by taking account of the results of the first instance court’s examination and the results of additional evidence examination conducted by the time of closing argument in the appellate court, the appellate court shall not reverse the first instance judgment on the sole ground that the first instance court’s determination on the credibility of a statement made by a witness of the first instance is different from the appellate court’s determination (see, e.g., Supreme Court Decision 2015Do2551, Apr.

B) Considering the following circumstances that were duly adopted and examined by the court below in full view of the evidence duly admitted and examined by the court below, the court below, as determined by the court below, demanded Q representative director to waive the delivery of a new type P by receiving a request from the R representative director by allowing R to deliver a new type P, and thereby, Q Q to waive the delivery of a new type P. The fact that Q has been sufficiently recognized. The court below did not err by misapprehending the facts of this part of the judgment or by misapprehending the legal principles. This part of the defendant's assertion is without merit.

① While S appeared as a witness at the trial in the investigation agency and the court below, when R was unable to be selected as a person subject to priority examination in the new PP bid process in 2012, S made a statement to the effect that, despite of its lack of mind and mind, the Defendant requested the Defendant to deliver a new PP by telephone. The Defendant’s assertion that: (a) there was no relationship between S and the Defendant at the time; (b) there was no evidence that S offered or promised to offer the above solicitation to the Defendant at the time; (c) there was no possibility that the Defendant would be punished as a crime of offering of bribe at the time of the statement; and (d) there was a situation that there was a possibility that the investigative agency might expand the investigation of R, etc. at the time of the statement, it is difficult to deny the credibility of the aforementioned consistent and specific statement made by S.

Q was imposed penalty for delay on the ground of the delay in the supply of old type P in 2011. In the 2012 P supply bid, while the number of the old type P was significantly increased compared to the previous year (in the case of old type P, 73,237, but the number of the supply in 2012 was 247,495, the number of the supply in 2012 was 247,495) Q was selected as the first priority subject for both old type P and new type P in 2012, and it seems that Q could have been doubtful whether Q would be possible to supply new type P in 2012. In addition, in 2012, Q did not receive compensation for delay on the ground that the former type P did not meet the production number and delayed production due to lack of production and standard failure. In addition, Q did not receive compensation for delay on the ground that the Defense Acquisition Program Administration did not accept a request from Defendant 2012 to respond to the new type PP tender.

However, in addition to the circumstances acknowledged by the court below, following the Defendant’s request for delivery of a new type PP from S, and the circumstances acknowledged by the evidence of this case as follows, the Defendant demanded the Defendant to waive the supply of Q-type PP to Q-type P-type, and due to this demand, it can be sufficiently recognized that Q-type P-type is giving up the status of Q-type P-type subject to preferential examination. The above circumstances and other circumstances asserted by the Defendant cannot be deemed to have given up the supply of a new type P-type P-type P-type, regardless of the Defendant’s demand.

0 The court below stated that T was requested by the investigative agency to grant the delivery of new PP to R until the court of original trial, and maintained the statement to that effect in the court of original trial.2)

In addition, as determined by the court below, T made a statement to the effect that, if the investigation agency refuses the defendant's request from the investigative agency to the court of the court below, there was a dispute such as the imposition of compensation for delay in the old P, and there was concern about suffering disadvantages in the future bidding process, and it was inevitable to accept the defendant's request without choice. In the trial, it was anticipated that there was no disadvantage for the defendant's refusal of the proposal, and in full view of the idea that "in the event of the defendant's refusal of the proposal, it would be difficult to proceed after the next, it would have been difficult to seek cooperation with the previous illegal company sanctions, etc." (23 pages of the examination record of the court below), it was stated that "I waiver the delivery of new P, because of the interview with the defendant, it did not waive the delivery of new P, and there was no inevitable reason to waive it by itself, it is not clear that T's refusal of the defendant's request for the delivery of new P is not a waiver of the defendant's request for the delivery of new P.

As stated in the lower judgment of the lower court, Q was exposed to the dispute regarding the disposition of the Defense Acquisition Program Administration in relation to the old PP supply in 201 at the time of the new PP tender in 2012, the compensation for delay related to V supply in 2011, the compensation for delay related to V supply, and the compensation for delay related to the disposal of the Defense Acquisition Program Administration in relation to V, etc. In addition, the Defense Acquisition Program Administration Governor, etc. in charge of the examination of subsidiary materials in 2011, and the CZ, in 2011, made a false fact about the imposition of compensation for delay to Q Q, or distorted the time of imposition of compensation for delay, etc. for delay, and was found at the Audit and Inspection of the Board of Audit and Inspection in January 2016 on the ground that Q was disqualified for successful tender. In this circumstance, T is not only related to the compensation for delay, etc. which had been under dispute, but also did not have concerns over any other disadvantage against the Defense Acquisition Program Administration in relation to tender or contract.

As AJ also made a statement at AV Team (Evidence No. 2670) that the Defendant, the chief of the J division, would yield the supply of new P as his/her office, it seems that the Defendant would not feel pressure from the standpoint of QT representative director, who is a munitions supplier, who is a system company that has entered into a contract with the Defense Acquisition Program Administration or the Defense Acquisition Program Administration, will continue to engage in the business in the future, and the Defendant also stated in the prosecutor’s office that “if he/she hears the words that the relevant person would yield the supply of new P, he/she would be liable for the burden” (Evidence No. 2110 pages).

④ Even if there is some doubt as to whether Q Q would normally supply new PP within the supply period in 2012, Q was selected as a company subject to the first-class test of the new PP through lawful bidding procedures and obtained a legitimate expectation right to enter into a supply contract of the new PP preferentially. As to whether Q is possible to supply new PP, there are separate procedural methods to secure implementation, such as confirmation of production capacity that proceed in the Agency for Defense and Technology Technology and Quality, examination of the progress test conducted by the Defense and Technology Agency, and imposition of liquidated damages after the conclusion of the contract, or imposition of liquidated damages after the conclusion of the contract. Therefore, it is difficult to deem that the Defendant need to separately demand the waiver of Q’s legitimate right, apart from such regular procedures.

| T이 피고인으로부터 방위사업청에 들어오라는 연락을 받고 미리 신형 P을 포기하라는 제안을 받으면 대신 당시 분쟁 중인 지체상금 등을 해결하여 달라고 요청할 것을 마음먹었다고 하더라도, 이는 그 이전까지 계속하여 R에서 신형 P을 납품하여 온 상황에서 T이 피고인으로부터 갑자기 방위사업청으로 들어오라는 요청을 받고 피고인이 신형 P의 납품 포기를 요구할 것을 예상하고 그에 대한 Q의 이익을 확보하기 위한 대처방안을 미리 준비한 것으로 보일 뿐, 그러한 사정이 피고인의 요구와 무관하게 미리 Q의 신형 P에 관한 우선적격심사 대상업체로서의 정당한 권리를 포기할 것을 마음먹었다는 근거가 된다고 보기는 어렵다.

According to the reasoning of the court below, Q appears to have been determined to meet the standard of new type PP product before the new type PP tender in 2012. Q participates in the new type P bid each year from 2013 to 2015. P to be supplied to the Gun from the date of 2015, the new type of P is expected to be replaced by the old type of new technology and technology. (Evidence list 179, 180 each Defense Acquisition Program Public Procurement System's national defense bid output and the current trial witness's statement) The new type SP's new technology and technology performance test can be expected in itself if it is supplied after being selected as the new type PP successful bidder from the standpoint of Q Q, and it is difficult for Q to say that Q would have been able to perform the new technology and technology performance test at the time of delivery to the new type 20-year new technology and technology research institute's new technology and technology research institute's new technology and technology performance test.

It is difficult to view that the delivery of new PP was waived.

B. As to the Defendant’s assertion of misconception of facts and misapprehension of legal principles as to the violation of the Act on the Aggravated Punishment, etc. of Specific Crimes

1) The judgment of the court below on this part

Based on the reasoning of the judgment below, the court below found the defendant guilty of this part of the facts charged that the defendant received KRW 54,433,980 from R under the pretext of arranging matters belonging to the duties of public officials of the Defense Acquisition Program Administration or military related persons, by taking into account the following circumstances acknowledged by the employment evidence.

A) Comprehensively taking account of the following circumstances, the fact that the Defendant was requested by the R representative Director S to arrange and request matters belonging to the duties of public officials of the Defense Acquisition Program Administration or military personnel.

① From the prosecution to the court of the court below, S, the representative director of R, made a specific and consistent statement on the reasons why the Defendant entered the prosecution, the situation at the time of his/her proposal to the Defendant, the contents of the project that the Defendant requested public officials of the Defense Acquisition Program Administration to pay expenses to the public officials of the Defense Acquisition Program Administration so that R does not suffer disadvantages in relation to AY projects, etc., which were conducted by R from R to AX, by exercising influence over the relevant enterprises through the Defense Acquisition Program Administration so that R does not suffer disadvantages in relation to the relevant enterprises, or by requesting them to exercise influence on the relevant enterprises, or by requesting them to select R related to AY projects, new P projects, Z projects, Z projects, etc., or by requesting them to the public officials of the Defense Acquisition Program Administration or transmitting R’s position to the public officials in charge of the Defendant.

A director K, who is in charge of air business in the R business division, talks with S in advance about the Z business from the prosecution to the court of the court below, and talks with S to the effect that it would assist the defendant in carrying out the business by talking about specific difficulties, and around March 2014, he tried to help the defendant participate in the Z business development, and the defendant was well aware of the person in charge of the Defense Acquisition Program Administration during his period of time, so he was well aware of the fact that he did not know about the Z business development, so he would make efforts to proceed well to the maximum extent possible. On March 2014, 201, the defendant again asked the defendant about the progress situation and received the R development plan from the DE, which is a development company, so the evaluation is well progress, and it is well prepared if he actively respond to the DE request, so that public officials of the Defense Acquisition Program Administration consistently stated the details of the project cost and the situation at the time.

③ The Defendant, who is the head of the current RM headquarters, was in charge of delivering R’s difficulties or positions to public officials of the Defense Acquisition Program Administration, and stated that the Defendant requested the Defendant to deliver R’s position so that the mass value set at the stage of development in relation to AC development projects can be reflected in the mass production.

④ From March 6, 2014 to May 7, 2014, the Defendant entered the Defense Acquisition Program Administration, five times in total, and entered the Defense Acquisition Program Administration. The head of the Defense Acquisition Program Administration BC team stated that the prosecutor’s office and the lower court stated that R may help him participate in the DoD development projects being promoted by the Defense Acquisition Program Administration. In addition, the prosecutor’s office, which is the head of the Defense Acquisition Program Administration BG team, divided the talk about ACDB, where the Defendant found and supplied R to AW, but the Defendant said that the supply rate of DB supplied by R should be lowered from the next quarter.

⑤ The Defendant made a statement at the prosecution that he entered the Defense Acquisition Program Administration for R and affiliate companies. The Defendant received approximately KRW 54 million in total for about five months, even though he/she did not engage in R, for whom he/she had no particular duties, and the Defendant would have failed to pay the said amount to the Defendant, who did not engage in any particular duties, unless he/she is the pretext, such as route expenses to the Defense Acquisition Program Administration.

B) Comprehensively taking account of the following circumstances, the Defendant is recognized to have not performed duties as the Director of the R’s Business Headquarters.

① From the prosecution to the court of the court below, S, the representative director, was consistently stated to the effect that: (a) there was no fact that the Defendant was working for R’s affiliate company W (hereinafter referred to as “W”) and X (hereinafter referred to as “X”); (b) there was no fact that the Defendant was aware of military personnel and the Defense Acquisition Program Administration’s work experience; and (c) there was no fact that there was any same advice; and (d) the Defendant did not directly approve the documents.

② From February 2015, AM, who served as the head of R business headquarters, was first employed by the Defendant, and two months were at work, and it was almost rare since the Sewol ferry case, and it was stated that there was no fact that the Defendant filed a business report.

③ From May 2, 2014 to March 11, 2014, it is confirmed that the Defendant had access to the office, and it is difficult to deem that the Defendant appeared to work and performed duties.

④ Although it is recognized that the Defendant’s position in the Defendant’s office was the head of the R business, and the Defendant’s office was located in BH prior to the Defendant’s membership, AM was a public official seat from January 2014 to February 2015 in the lower court’s judgment, and the Defendant was not in the position of the head of the R business. The Defendant stated that “the Defendant is not in the position of the head of the R business.” Since the Defendant received the former position, there is room to regard that the Defendant was placed a standing and non-standing BH position rather than officers and employees such as standing director, director, head of the department, and director, etc., and the Defendant was provided with a vehicle under the name of the R corporation, and thus the Defendant appears to have been issued a certificate of employment indicated under the R, it is difficult to deem that the Defendant was working as the head of the R business.

(5) There is no objective data that the defendant recognizes that he/she has performed his/her duties as the head of the RR business, and there is no record related to the duties of the head of the RR in the pocket book prepared by the defendant.

2) Determination of the immediate deliberation

Based on the relevant legal principles and the above legal principles as stated by the court below concerning the criteria for determining the credibility of witness statements at the court of first instance, if the court below duly admitted and examined evidence was additionally considered in light of the following circumstances acknowledged by adding up the evidences lawfully adopted and examined by the court below and the court of first instance, as determined by the court below, the charge that the defendant did not perform his role as the head of R's headquarters, and the defendant received 54,43,980 won in total in response to the request for referral and solicitation of public officials of the Defense Acquisition Program Administration, etc., and received 54,43,980 won in response to the request for referral and solicitation from the Administrator of the Defense Acquisition Program Administration in relation to various military projects, etc. for which R is sought to participate. There is no error of law by misunderstanding the facts

① While S appeared as a witness at the trial at the investigative agency and the original trial, as in the statement at the investigative agency, as in the statement at the trial at the trial, “S was primarily intended to transmit the R’s position in relation to the relationship with the Defense Acquisition Program Administration.” “In fact, the Defendant sent the position of the company to the Defense Acquisition Program Administration and attempted to do so in relation to R,” “the Defendant did not perform any other work”, “BH was in charge of overall affairs, contracts, materials, etc., and the Defendant was in charge of any other work at all different from that of BH.” The Defendant stated that “S was in charge of management,” and “BH was in charge of any other work, and the Defendant was in charge of any other work at all different from that of BH.” The circumstance alleged above, namely, the possibility at the time of the Defendant’s testimony to be punished for the crime of offering of bribe, and the possibility at the investigative agency to expand the investigation intoR, making it difficult to deny the credibility of S’s aforementioned testimony to this court.

② According to the evidence No. 17, evidence No. 18, evidence No. 22, and evidence No. 23 submitted by a defense counsel to the trial of the party, the defendant appears to have worked almost every day during the period from March 2014 to May 2014. However, such circumstance alone is difficult to deem that the defendant did not work as the head of the R in addition to the duties such as delivering R's position to the public official, or soliciting R's business, it is difficult to view that the court below erred in finding that the defendant did not work properly, but it is difficult to view that such misunderstanding of facts has affected the conclusion of the judgment). Also, considering that the witness No. 2 of the trial of the party was aware that the defendant was the head of the R's business headquarters, and that the defendant was unable to obtain approval from the head of the headquarters of the company, and that the defendant was not aware of the fact that the defendant did not work properly during the period of his/her business, such as improving organization and sales, and that he/she did not have prepared the business report under his/her jurisdiction.

③ Two projects, AC projects, AD projects, and BD projects, which R intended to participate as components suppliers, do not directly enter into a contract with the Defense Acquisition Program Administration, but are structures for R to enter into a contract for the supply of components with the systems and systems that have entered into a contract with the Defense Acquisition Program Administration. However, in the investigation agency, the court of original instance, and the court of original instance, “S is in the position of management and supervision of the Defense Acquisition Program Administration, and is in fact in the Defense Acquisition Program Administration with the right to make all final decisions, such as pricing or final settlement of prices, etc., may be easily selected as a supplier if the Defense Acquisition Program Administration is able to assist.” The statement was made to the effect that “The Defense Acquisition Program Administration may exercise its influence if it talks with the systems and entities with any other matters which are controlled by the relationship with the systems and entities (see, e.g., evidence records, 961, 963 pages, 287 pages, 324 pages, examination record keeping witness records at the trial, and 52, and 53 pages).

Furthermore, in the case of Z projects, the date on July 22, 2014, when the ZE, which is the system company, was selected as the contractor subject to preferential bargaining, and the 'BE' and 'D' were selected as the contractor subject to preferential bargaining on December 5, 2014, while the defendant had been working after R in relation to the project, on November 11, 2013, before the ZE had already been working to participate in the project (Evidence No. 1013 pages of the evidence record), it was more important time for the defendant to participate in the project because it was in the process of selecting the supplier (Evidence No. 963) at the time of the entry of the defendant into the investigative agency, and the 'E' and 'D' were selected as the contractor subject to preferential bargaining' on the basis that the defendant had not been able to participate in the project from the point of view of the court of the Defense Acquisition Program Administration at the latest before the announcement of the 2nd trial.

In addition, even if the contract amount, quantity, delivery period, etc. of AB and P projects are determined and announced at the time of the public announcement of tender, it is necessary for R to set the bidding conditions, such as unit price and quantity, in favor of R before the tender is made, or to request R to consider convenience in the process of amending the contract contents after the conclusion of the contract, performing the contract, etc. (as described in the first instance trial, S concluded a contract with the prosecutor to enter into the quantitative process from 2013 to 2014, which was scheduled to enter the research and development in the year 2014, but was scheduled to enter into the two pro rata procedure, and how it is low-scar to reflect the low-scar position in the process of concluding the contract, such as a new type P, even in the case of the new type P, it is difficult to consider convenience in the process of executing the contract, such as the payment period, and there was no need to transfer it to the Defense Acquisition Program Administration to the contrary.).

④ As above, it is recognized that R has paid 53,533,980 won to the public officials, etc. of the Defense Acquisition Program Administration in the name of a participant company in connection with various specific projects, drawing favorable terms of contract, and making a solicitation for convenience in the course of performing the contract, etc. As such, it cannot be deemed that R merely has paid the above money to the Defendant with a vague expectation that the Defendant merely maintains a good relationship with the Defense Acquisition Program Administration through the Defendant, and there is no possibility that R may receive any help or incur any loss in connection with the projects implemented by the Defense Acquisition Program Administration in the future.

⑤ In addition, “mediation of matters that belong to the duties of a public official” under Article 3 of the Act on the Aggravated Punishment, etc. of Specific Crimes refers to an act of arranging such matters for another person’s business other than himself/herself (see, e.g., Supreme Court Decisions 2000Do357, Jun. 11, 2002; 2010Do2554, Apr. 29, 2010). However, even if the Defendant was actually employed in R, as long as it was entered into R to perform the duties of solicitation and good offices against the Defense Acquisition Program Administration, the said employment contract is merely in the form of facilitating such solicitation and good offices, and thus, it does not interfere with deeming that such act is an arrangement for another person’s business other than the Defendant himself/herself (see, e.g., Supreme Court Decision 2013Do4644, Aug. 23, 2013).

C. As to the Defendant’s assertion of misunderstanding of facts and misapprehension of legal principles as to the violation of the AE-Related Act on AE

The defendant alleged in the court below that the defendant actually entered into an advisory contract with AE and received a total of 34,029,520 won in return for such advice, and that the above money was not received under the pretext of good offices for matters belonging to the duties of the public officials of the Defense Acquisition Program Administration or military personnel. The court below rejected the defendant's allegation in this part of the charges, based on the circumstances as stated in its reasoning, which are acknowledged by comprehensively taking into account the evidence, such as statements made by the prosecutor's office in AG, the defendant's statements made by the prosecutor's office in some prosecutor's office, the defendant's pocket book camera, mobile phone text messages sent by AP to the defendant, and telephone calls, etc., and received the above 34,029,520 won in return for solicitation and good offices for the designation of the delivery company, etc.

Examining the above judgment of the court below in comparison with the records in light of the legal principles as to the standard of determining whether the crime of good offices was established (see note 3), and the standard of determining the credibility of the statement made by the witness of the court of first instance, it is difficult to reject the credibility of the statement made by the defendant in the prosecutor's office due to the circumstances alleged by the defendant, such as the fact that the circumstances alleged by the defendant were likely to be punished as the crime of offering of a bribe at the time when the statement was made by the prosecutor's office, and it is difficult to find any circumstance to find that maintaining the judgment of the court below which rejected each statement made by AG and AP in the court of original instance against the above AG's prosecutor's statement, etc. in light of the above AG's statements made by the prosecutor's office, etc., and it is reasonable to find the defendant guilty of this part of the facts charged as above.

As stated in the judgment of the court below, while entering into an advisory contract with AE on February 2, 2014, the defendant received a request from AG to "if there is any event related to the Gun, such as the Defense Acquisition Program Administration, the request shall be made smoothly by the military personnel in charge of the Defense Acquisition Program Administration or public officials, etc.", and thereafter, AG in fact requested the defendant to request the person in charge of the Defense Acquisition Program Administration to designate defense materials for vehicle development devices and the tactical information communication systems, or requested the defendant to raise the indirect labor ratio on the development of the tactical information and communication systems, to lower the noise standards, or to deliver the AE position thereon. As such, the request from AG to make a request to a public official in charge of the Defense Acquisition Program Administration for solicitation or mediation to the defendant is merely a mere expectation that AE would not have any help or damage with respect to the projects implemented in the future by the Defense Acquisition Program Administration, so doing would not change the purport of maintaining good relations between the defendant and the Defense Acquisition Program Administration through mediation or mediation.

The lower court did not err in its judgment by misapprehending the legal doctrine as alleged by the Defendant or by misapprehending the legal doctrine, thereby adversely affecting the conclusion of the judgment. This part of the Defendant’s assertion

D. As to the assertion of unfair sentencing by the Defendant and the prosecutor, the sentencing is determined within a reasonable and appropriate scope, on the basis of statutory penalty, by comprehensively taking into account the factors constituting the conditions for sentencing under Article 51 of the Criminal Act, based on the statutory penalty. However, considering the unique area of the sentencing of the first instance, respected under the principle of court priority and the principle of direct administration, and the ex post facto nature of the appellate court, the sentencing of the first instance is deemed to have exceeded the reasonable scope of discretion when comprehensively taking into account the factors constituting the conditions for sentencing in the process of the first instance sentencing examination and the sentencing guidelines, or where it is deemed unfair to maintain the first instance sentencing as it is in full view of the materials newly discovered in the course of the appellate court’s sentencing examination, it is reasonable to reverse the judgment of the first instance. In the absence of such exceptional circumstances, it is desirable to respect the sentencing of the first instance court (see, e.g., Supreme Court en banc Decision 2015Do3260, Jul. 23, 2015).

In light of the above legal principles, the grounds for unfair sentencing alleged by the court below on the grounds of each of the grounds for unfair sentencing alleged by the defendant or the prosecutor are already considered in determining the defendant's punishment, or the sentencing of the court below is deemed to have been conducted within the reasonable scope of discretion, considering the overall circumstances related to the sentencing of this case, even if such grounds are considered, and thus, it cannot be deemed unfair

Each part of the defendant and prosecutor's argument is without merit.

3. Conclusion

Therefore, the appeal filed by the defendant and the prosecutor is dismissed in accordance with Article 364 (4) of the Criminal Procedure Act. It is so decided as per Disposition.

Judges

The presiding judge, judge and assistant administrator;

Judges Min Il-young

Judges Hong Man-man

Note tin

1) In the crime of abusing authority and obstructing another’s exercise of rights under Article 123 of the Criminal Act, the term “an abuse of authority and obstructing another’s exercise of rights” refers to unlawful exercise

In other words, in the formal and external aspects, it means a case where the performance of duty seems to be a legitimate act other than legitimate authority, and constitutes abuse.

of the official duty of the official, the necessity and reasonableness of the official duty of the official, and the ex officio exercise of the official duty shall be permitted in the case of its purpose and the circumstances in which

The Court shall decide by taking into account all the elements, including whether the requirements under law have been satisfied (see, e.g., Supreme Court Decision 2011Do1739, Jul. 28, 2011).

(ix) the Commission;

2) T In the investigative agency, the defendant has a big amount of the old PP compared to the new PP, in Q in Q, and in R, the previous PP in Q, and the previous P in R.

As the former type P has been produced in Q, the former type P is to be supplied in Q, and the new type P is to be supplied in R, and the new type P is to be conceded to R.

D.The statement that he stated that he reads "(779 pages of evidence record) and that in the original trial, the defendant does not speak "n't say" (new P).

R stated that the former P would be good and that Q would be better to make it as it is (118 pages of the trial record) and the Defendant in the trial.

The person stated that "I would promote Q as I would promote Q as I would have been promoted every year, and would promote Q as I would promote it according to the old style."

(2 pages of the record of examination of witness in the trial)

(iii)"Good offices" in the crime of good offices or acceptance" shall transmit to the public official the views of the Parties on certain matters belonging to the duties of the public official; or

decision to be made in the direction that the party so wishes by requesting or exerting influence on the duties of the public official or

It means the act of helping a public official to be fair. In this case, the duties of a public official are included in the case of a legitimate act of duty, and mediation.

It is not necessary for the other party or the content of his duties to be specified specifically, and if money or valuables are received under the pretext of such good offices, the office

The above crime is established regardless of which good offices have been arranged (Supreme Court Decision 2008Do10496 Decided February 26, 2009; Supreme Court Decision 2008Do10496 Decided February 26, 2009; Supreme Court Decision 12.

12. Supreme Court Decision 2010Do13354 Decided January 1, 201

Whether there is a quid pro quo relationship between a referral of matters falling under the duties of a public official and a money received, shall be the contents of such referral, broker and interest

All circumstances, such as whether there is a friendly relationship between public persons, whether there is an excessive interest, and the details and timing of receiving benefits, shall be determined in full, and good offices and received.

There is sufficient price relationship between money and goods as a whole and comprehensively, and the nature of the money and goods received by the broker as a consideration for the good.

Where the nature of consideration for other acts is indivisiblely combined, the entire arrangement shall be made as to the act of mediation inseparably.

It is reasonable to view that they have the nature of consideration (Supreme Court Decision 2008Do10496 Decided February 26, 2009; Supreme Court Decision 2012Do10,000 Decided February 26, 2009)

12394 see, e.g., Supreme Court Decision 12394

On the other hand, in order to recognize the criminal intent that the public official received the name of arranging matters falling under the duties of the public official, it is strict.

Although proof is not required, if the defendant denies the criminal intent while recognizing that he received money or goods, etc., it is highly related to the criminal intent.

It is inevitable to prove the indirect fact by the method of proving it (see, e.g., Supreme Court Decision 2004Do7359, Jan. 28, 2005);

In light of indirect facts, the defendant is aware of the fact that the money received in the light of indirect facts has the nature of consideration for the good offices.

On the other hand, if it can be seen that it is received with implied consent, the criminal intent of good offices shall be fully recognized (Supreme Court Decision 2012Da14489 Decided February 18, 2016).

2015Do18070 decided Feb. 2, 201

심급 사건

-서울중앙지방법원 2016.10.28.선고 2016고합486

서울고등법원 2017.8.24.선고 2016노3573

-대법원 2017.11.29.선고 2017도14194

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