2010Gohap291 Violation of the Aggravated Punishment, etc. of Specific Crimes Act (Bribery)

1. A;

2. B

ElucidationS

Attorney C, D (for Defendant A)

Law Firm E (for Defendant B)

February 16, 2011

Defendant A shall be punished by imprisonment for five years. Defendant B shall be acquitted.

Criminal facts

1. The occupation, etc. of Defendant A;

Defendant A, as the president of G University H Graduate School, is a professor of the above graduate school in the above graduate school and operates the J Research Institute within the above graduate school, and was commissioned as a member of the Seoul Special Metropolitan City K Committee on March 2, 2005 and was on March 1, 2009 as a member of the Seoul Special Metropolitan City K Committee member for four years until March 1, 2009.

The members of the Seoul Committee are in charge of deliberation and consultation on the matters to be deliberated or consulted by the Seoul Committee, the matters delegated to the City Mayor among the matters to be deliberated by the K Committee, and the matters requested by the City Mayor among the matters related to urban planning. The Seoul Committee is divided into three sections. Among them, the members belonging to two minutes and three minutes are in charge of deliberation and consultation on the matters prescribed by relevant Acts and subordinate statutes, such as redevelopment and reconstruction, while engaging in activities as members of the L Committee comprised of the National Land Planning and Utilization Act.

2. Progression, etc. of urban environment rearrangement projects in M districts;

A. The relation between Defendant A and N’s representative director

0. From September 15, 2005, the representative of N Co., Ltd. (hereinafter “N”) established for the purpose of real estate development business from August 11, 2005 to February 16, 2006, N is a company that has been implementing a business (hereinafter “M business”) of constructing two buildings with the trade name from August 11, 2005 to February 16, 2006, the site area of N is 9,114.90 square meters as part of the urban environment rearrangement project in Jung-gu Seoul, Jung-gu, Seoul, as part of the urban environment rearrangement project in Seoul, from September 2005 to September 1, 2005.

Defendant A served as the president of the H graduate school of G University from March 2006, and around September 2006, Defendant A became aware of the fact that 0 teachers were enrolled in the L Graduate School SP graduate course of G University (0 was completed from September 2006 to February 2007).

B. On April 20, 2005 and September 1, 2005, Defendant A deliberated on the M business as K members after the deliberation of the K Committee of Seoul Special Metropolitan City held on April 20, 2005 (the agenda items related to M business among the above deliberation is postponed as ‘M urban environmental improvement plan') and the deliberation of the 8th K Committee of Seoul Special Metropolitan City held on May 17, 2005 (the agenda items are decided to be handled after review) by participating in the investigation and trial process as a result of the deliberation. However, on June 1, 2005, M business was suspended as the order of the Seoul Special Metropolitan City market to keep the status of the progress of the investigation and trial.

Since August 2005, W, the representative director of V, Inc., 000, came to know about M business by zero introduction, he asked the members of the Seoul Special Metropolitan City KK including the defendant A, who had a close relationship with P, about whether M business will be reserved for a long period of time due to the restriction of U in Seoul or may continue to be developed, and if Cheongcheon is opened, from the viewpoint of Seoul, Ma business implemented in the area where Cheongcheon has a starting point, from the viewpoint of Seoul.

Since W establishes N, acquires M business in KRW 170 billion from T, it has owned 50% of N, and it has de facto been responsible for the role of the Chairperson, and 0 has made zero implement M business as N representative Director.

(c) Progress of deliberation by the L Committee related to M business;

N around May 24, 2006, after deliberation by the L Committee of Seoul Special Metropolitan City (M business was deliberated upon by urban planning and implemented from March 18, 2005, under the Act on the Improvement of Urban and Residential Environments) to construct a complex building equipped with ices, residential facilities, commercial facilities, hotels, etc. in relation to the M business, but from the end of the end of 2006, the Oruss City changed the design of the above complex building into the Orscoping Building consisting of the Orscoping only of the Orscoping with a view to increasing profit and profit, and entered into a contract to sell the so-called “R building” in total to the Y Investment Company (hereinafter referred to as “Y”) with approximately KRW 850 billion according to the modified design as above.

It has become a situation in which the deliberation of the Seoul Metropolitan Government LA Committee should be followed.

However, in the deliberation of the 24th Seoul L Committee held on November 28, 2007, the members of the L Committee including Defendant A reviewed the appropriateness of the change of the purpose of the building in relation to the M business's basic plan for urban environmental improvement. However, considering the location, conditions, etc., the above agenda was decided to be withheld on the ground that the review of six items, such as the review of the introduction plan of accommodation facilities and the review of the installation of an open network for the general public, is necessary.

At that time, N has already changed the design of M business to the scoppy and decided to sell the scopic building to the Y, so in order to pass the deliberation by the L Committee, it is necessary to review the adequacy of the change of the purpose of use of the building, but to persuade the L members who decided to review the plan to introduce accommodation facilities in consideration of location conditions, etc., and to withdraw the above review opinion, and there was a concern that the delay in passing the deliberation by the L Committee would cause considerable trouble to M business.

Thus, 0 is the Design Service Business Group, Inc. (hereinafter referred to as the "Z"), which is responsible for the authorization or permission of M business.

As a result, Z, etc. (hereinafter “Z, etc.”) and Z, etc. (hereinafter “Z, etc.”) have already concluded a design change contract with Z, etc. (N around February 2, 2007, hereinafter “Z, etc.”) with Z, etc. with Z, etc. with Z, etc. (hereinafter “Z, etc.”) and Z, etc. (hereinafter “Z, etc.”) with Z, etc. with Z, etc. with 4,930,000,000,000,000 won for services. In the process, the design change contract was concluded by raising 40,000,000 won for the contract by increasing the contract price under the contract compared to the actual contract price, the remaining 200,000 won was used for the related company, and the contract was concluded by increasing the contract price under the contract amount, and the contract was concluded by Z, etc. with Z, etc. to bear 50,000,000 won for Defendant A, etc.

3. Violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (Bribery) by Defendant A: Acceptance of a third party by entering into a false service contract between Z and AB;

A around December 1, 2007, the defendant had already changed the design of the M business through a telephone conversation from 0 to Y, and had the business sell it to Y in a lump sum without introduction of accommodation facilities, etc., upon receiving illegal solicitation, the defendant AB (hereinafter referred to as "AB") whose representative director is the defendant AC to conclude a false service contract with AB (including value-added tax). The defendant 0 had the Z state enter into a false service contract with the AB and the service contract amount of KRW 110 million (including value-added tax) in the name of the Z, and had the AB enter into a false service contract with the AB and the service contract amount of KRW 10,000,000 (including value-added tax) and received the reward from the AB bank account (EE) on December 21, 2007 to 200,000 won and transferred the above amount to the defendant 30,000,000 won, including a bribe.

Summary of Evidence

1. The defendant A's partial statement

1. Each legal statement of the witness, W, AF, AG, and AH;

1. Each protocol of suspect examination prepared by prosecutors with respect to 0, W, AI, and B;

1. An interrogation protocol prepared by a prosecutor with respect to AJ (AC and comparison);

1. A copy of each protocol of examination of suspect prepared by the public prosecutor;

1. Each statement of statement prepared by AH, K, AG, AL, AL, AM,N, AF, AP, Q, AP, AJ, AC,S,O, ATS, AT, AV, AW, AY, AY, AY, BA, BB, BC, and BD;

1. On April 3, 208, the list of members of the Building Committee BB, the Seocho-gu Seoul Metropolitan Government public officials related to construction, the composition of the Seoul Metropolitan Government K Committee on April 5, 2008, the e-mail (M construction review strategies) sent by BE, BF, BH to BH on August 18, 206, the e-mail (name of building committee), the e-mail (name of review committee), the 106.10, 10.10, the e-mail (name of review committee), the list of members of the Seoul Metropolitan Government Construction Committee, the list of public officials related to building BB, the list of public officials related to building projects, and the list of copies of the AB, the list of copies of the Seoul Metropolitan Government's Urban Planning Contract, the e-mail (M consultation items), the Ministry of Land, Infrastructure and Transport Data for each of the research and approval Section B, the Ministry of Land, Infrastructure and Transport Data for the Purposes of the Agreement, and the Ministry of Research;

1. AB copy of investigation report (Attachment of part of the case record), copy of investigation report (to be attached to the list of members of the Seoul City Construction Committee), investigation report (to be attached to the list of members of the Seoul City e-mail server), investigation report (to be attached to the list of members of the Seoul KS Committee), list of members of the committee for investigation (to be attached to the department in charge of project implementation approval), investigation report (to be attached to some of the relevant case records), investigation report (to be attached to the protocol of examination of the suspect), investigation report (to be attached to the industry-academic cooperation foundation of the Seoul KS University, the State Z and the Jeju ZB), attachment of investigation report [to be attached to the document of investigation (to be attached to the list of members of the Seoul NA Construction Committee), list of members of the investigation report (to be attached) [to be attached to the list of members of the Urban Environment Planning Committee), list of members of the investigation report (to be attached to be attached to be attached to be attached to be attached to be attached to be attached to the investigation report) and the investigation report [to be attached to be attached to be attached to the investigation report].

1. Research on the application method of U-CITY to BV (208.1), SOC engineering seminars U-CITY-related thesis author, U-CITY-related thesis author, U-CITY expert, contract (the planning and analysis of the rare parking lot plan and the establishment of operating plan), research on the planning and analysis of the second lot lot and the application of U-PARKING, and data on the presentation of overseas urban return planning plans in 2008;

Application of Statutes

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

Article 2(1)1 of the Act on the Aggravated Punishment, etc. of Specific Crimes, Article 130 of the Criminal Act (the choice of imprisonment for a limited term and the upper limit thereof shall be governed by the main sentence of Article 42 of the former Criminal Act (amended by Act No. 10259, Apr. 15, 2010 and enforced October 16, 2010)

1. Discretionary mitigation;

Determination as to Defendant A and his/her defense counsel’s assertion of Articles 53 and 55(1)3 of the Criminal Act (the following circumstances favorable to the Defendant’s grounds for sentencing)

1. The assertion;

A. A third party referred to in the crime of providing third-party bribery requires a subjective relation or interest with a public official. Since Defendant A and AB are not subjectively related or have mutual interests, Defendant A and AB cannot be deemed to be a third party referred to in the crime of providing third-party bribery.

B. Defendant A introduced AB as a representative of AC doctor who is an expert in the U-C sector upon the request of U-C doctor by introducing U-D experts from 0, and there is no fact that the deliberation by the L Committee of Seoul in the future by the Seoul Metropolitan City would allow 0 to enter into a service contract with AB in return for the solicitation that the change of the urban environment improvement zone for M business would be passed without the introduction of accommodation facilities. The statement of 0 that the service contract was concluded in return for assisting the deliberation by the L Committee of Seoul Metropolitan City was reversed several times during the course of investigation and trial, and 0 was detained and investigated by the case of the principal.

0 statements cannot be trusted in that they are suspected of not having made a false statement for the purpose of avoiding us.

C. The purport of the crime of accepting acceptance by a third party is to prevent the scope of punishment from becoming unclear. As such, there is a need to exist between the parties, explicitly or implicitly, the understanding on the relationship of compensation stipulating the illegality of solicitation. It is the attitude of the Supreme Court precedents that the crime of accepting acceptance by a third party does not constitute an illegal solicitation, considering that there was a perception or understanding on the relationship of compensation at the time of solicitation, even in cases where there was an expectation that the payment of money and valuables to a third party would be caused by a quid pro quo or would be in favor of the payment of money and valuables to a third party, or there was an expectation that the payment of money and valuables to a third party would be avoided, or that there was no other motive irrelevant to the execution of duties. According to the 0th prosecutor's office and court's statement, 00 were to conclude a service contract with a motive irrelevant to the deliberation, and 00 was not known to the Seoul Metropolitan Government LB, so that there was no illegality in the MB's design service agreement nor did it be concluded with the Seoul Metropolitan Government Design Committee.

D. AB performed a research service under the above service contract, “Research on U-CITY Application Plan,” and provided the results therefrom to the Z. As such, the above service contract cannot be deemed as a false service contract to the extent that there was a substantial service performance by AB. Therefore, the service payment received by AB is not a consideration for allowing a review without the introduction of accommodation facilities, but a legitimate service payment received under the service contract normally concluded.

2. Determination

A. As to whether there is a subjective relation or interest between a public official and a third party in the crime of providing third-party bribery

Article 130 of the Criminal Act does not stipulate that there should be a subjective relationship or interest between a public official and a third party in order to establish the crime of providing third-party bribery, and if it is interpreted that there should be a subjective relationship or interest between a public official and a third party in order to establish the crime of offering third-party bribery, the third party can be evaluated the same as the public official received a bribe, and thus the crime of offering third-party bribery can be established under Article 129(1) of the Criminal Act, not the crime of offering third-party bribery, in a case where the crime of offering third-party bribery and the crime of acceptance of bribe can be established, and thus, the distinction between the crime of offering third-party bribery and the crime of offering of third-party bribery may be ambiguous. Therefore, there is no subjective relation or interest between a public official and a third party in order to establish the crime of offering third-party bribery. Accordingly, even if the existence

On the other hand, AC, the representative director of the AB, which entered into the Z service contract with the G University, is the doctor's degree under the direction of the Defendant A at the H graduate school of the G University. In addition to the instant service contract, the Defendant A also had a 250 million won service cost ordered by the GW company, which was the representative director of the N, in connection with the BW project implemented by the GW company, which was the representative director of the N, to be entrusted by the AB. There is a lack of consultation in performing the BT office, which is the design office, the BB office, in charge of the design of the project. In full view of the fact that the graduate students of the H graduate school affiliated with the H graduate school of the G University operated by the Defendant A, who were the representative director of the G University, were also performing the services to be performed by the AB on behalf of the services to be performed by the AB, it is difficult to deem that the Defendant A and the former representative director of the G University, was not subjectively related to the AB or both.

B. The credibility of the 0 statement that allowed the Z to enter into the instant service contract with AB is the most well-known human resources. As such, the 0th statement is the most essential evidence of the facts charged in this case. Accordingly, the 0th statement is examined as to the credibility of the statement made between the prosecutor's office and this court.

0 The following was made on the grounds that the prosecution and the AB concluded a service contract between the Z and the Z and the ZB, the influence of the defendant A, whether the defendant A demanded support for research funds, and whether the defendant A made a solicitation for M business to pass through the deliberation of the Seoul L Committee of Seoul.

(1) A statement made by the prosecution

A) On March 10, 2010, the statement 0 made by the prosecutor at the prosecutor's office on March 10, 2010 stated that "A professor at the Design Office thought A will receive assistance because Z had been the above members of the deliberation." (A professor's three-time protocol of suspect examination prepared by the prosecutor, one right to investigation records, one right to investigation records), "A professor is a G professor and it is known that Z professor is attending the G H graduate school. Since there are many kinds of points from the perspective, it would be well visible that Z and AA provide research funds (the three-time protocol of suspect examination prepared by the prosecutor, one right to investigation records, one right to investigation records, and three-minutes of suspect examination records prepared by the prosecutor). If it seems that there is a strong influence on the passage of the business, it is difficult to say that the concept of passage of the prosecutor would be overcoming.

B) On April 15, 2010, the statement 0 made at the prosecutor's office was the shape that the prosecutor promised to provide research funds through the service contract if the authorization or permission is well granted in relation to the N business in Z, AA, and B. However, even after the authorization or permission is terminated, Z, B professors and A professors did not conclude the service contract, and Z and A professors do not conclude the service contract in Z, A. Therefore, it is difficult to conclude the service contract due to lack of money in Z, Z, AA, and 20 million won which remains after the above 400 million won is included in the service contract between B and A, and it is the case that the professor prepared the interrogation protocol with the prosecutor's right to assist in the investigation of the suspect's interrogation of the suspect's interrogation of the suspect's interrogation of the suspect's interrogation of the suspect's interrogation of the suspect's interrogation of the suspect.

C) On May 20, 2010, I attended AH, F, and AG at the request of the witness, and I would like to select BX professor at the graduate school of G University at that time, different from the previous statement. However, I would like to see that I would like to see that I would not be a guidance professor. I would like to continue school, and I would like to keep I would like to know that I would not be able to provide research funds. At that time, I would like to request that I would be able to provide research funds. At that time, I would like to say that I would like to be 2 I would not be able to give 5 I would like to give 2 I would like to provide I would like to provide I would like to provide I would like to give I would like to say that I would like to give 2 I would like to provide I would like to know that I would like to be a professor at that time.

라) 2010. 5. 28. 참고인으로 출석하여 한 진술0은 용역계약을 체결한 경위에 대하여 다시 '지난 번 진술한 바와 같이 제가 2007. 11.~12.경 G대학교 대학원 박사과정에 진학하게 되었는데 지도교수로 BX 교수를 지정하였습니다. 그런데 A 교수는 자기를 지도교수로 하지 않은 것에 대해 불쾌하게 생각하는 듯이 저에게 이야기를 하였고, 저는 계속하여 학교에 가야 되었고, 또한 A 교수의 얼굴을 계속해서 봐야 했기 때문에 연구비 지원을 해주지 않을 수가 없었습니다. 그런 시점에 BS대 B 교수로부터 연구비 지원을 해달라는 부탁을 받은 사실이 있고 A교수에게도 연구비를 지원해 달라는 부탁을 받은 적이 있어 A 교수에게도 연구비를 지원해 주라고 AF 부사장에게 이야기했던 것입니다'(에 대한 검사 작성 3회 진술조서, 수사기록 4권 2853면)라고 진술하였고, 피고인 A가 연구비 요청을 한 적이 있는지에 대하여 묻자 '저와 만나서 차를 마시던가 하는 자리에서 "요즘 연구비가 부족해서 그러는데 연구비를 지원해 주었으면 좋겠다"고 지나가는 말로 이야기 했습니다'(0에 대한 검사 작성 3회 진술조서, 수사기록 4권 2853면)라고 진술하였으며, 구체적으로 연구비 지원을 요구한 시기나 횟수 등을 묻자 '제가 G대학교 최고위 과정에서 4~5개월 다니는 동안 1~2번 그런 이야기를 들었습니다. 교수들은 최고위 과정에 다니는 사람들에게 연구비 지원 이야기를 많이 합니다. 저의 경우에는 사업도 진행 중이었고, G대 박사과정을 생각하고 있었기 때문에 연구비 지원 얘기를 좀 더 주의 깊게 들은 것이 사실입니다'(0에 대한 검사 작성 3회 진술조서, 수사기록 4권 2853면)라고 진술하였고, 교수들에게 연구비를 지원한 이유에 대하여 묻자 '교수들에게 돈을 지급한 이유 중 하나는 사업을 진행하는 통로에 보초처럼 서 계신 분들이니까 통행세를 낸 개념이라고 보면 되고 교수들에게 보험도 들 겸 해서 연구비를 지원한 것이라고 보면 됩니다. 사업을 하다보면 나중에 도움을 받아야 되는 문제도 있었고, 또한 M 사업과 관련해서 다른 분들이 반대를 하면 어느 정도 극복이 가능한데 B나 A는 심의와 관련해서 영향력이 강한 분이어서 그분들이 반대하면 극복이 어렵기 때문에 관리하는 개념이라고 보면 됩니다(0에 대한 검사 작성 3회 진술조서, 수사기록 4권 2854면)라고 진술하였으며, 검사가 '연구비를 지원해 주려면 어떠한 방법으로 어떠한 절차를 거쳐서 지급해 주는 가요'라고 묻자 '대학교수들에게 연구비를 지원하는 것은 설계사무소를 통해서 하는 것이 관례입니다. 그래서 제가 설계사무실을 통해서 지원하도록 하겠다고 이야기를 했던 기억이 납니다. 그래서 설계회사인 Z와 AA에 연구비를 지원하라고 이야기를 했는데 설계용역 범위 안에 들어있지 않는 것이라 반발을 하여 협의를 하니 약 1개월 가량 시간이 걸렸고, 그러는 과정에서 박사과정 때문에 학교에 가서 A를 만났을 때 설계사무실을 통해 지원하도록 하겠다고 이야기를 한 것입니다'(O에 대한 검사 작성 3회 진술조서, 수사기록 4권 2854면)라고 진술하였다. 마지막으로 검사가 교수들에게 연구비를 지원한 것에 심의가 잘 마쳐진 것에 대한 사례의 성격이 있는지에 대하여 묻자 'B 교수에게 연구비를 지원한 것은 사례의 성격이 강하고, A 교수에게 연구비를 지원한 것은 사례의 성격이 전혀 없는 것은 아니지만 제 개인적인 문제에 관하여 양해를 구하기 위한 목적도 컸습니다'(0에 대한 검사 작성 3회 진술조서, 수사기록 4권 2856면)라고 대답하였고, 이에 대하여 검사가 'A 교수가 서울시의 K위원이 아니었다면 진술인이 1억 원이나 연구비를 지원했겠는가요'라고 다시 묻자 '제가 전혀 아니라고는 말씀드리지 않겠습니다. A 교수가 심의위원이었기 때문인 점과 제 개인적인 문제의 양해를 구하는점을 따져보면 4:6정도라고 생각합니다'(에 대한 검사 작성 3회 진술조서, 수사기록 4권 2856면)라고 진술하였다.

E) On July 12, 2010, the statement 0 made by the public prosecutor appeared as the suspect and stated that the prosecutor would provide A with research expenses through a design office, and it is not specific for A professor to see what she is. The same as her son, who was known, and the atmosphere with the professor was good (2 times the Korean public prosecutor's interrogation protocol, 6 right 3806 page), and it was true that the research expenses were provided by the service contract, which included 'B Professor' as the case for which the deliberation of the business was completed well, and that '20 billion won' was not prepared for the purpose of '20 million won' or '6 of the suspect interrogation protocol' for the purpose of understanding that '60 million won was not a case for which '60 million won was sought.'

F) On July 27, 2010, the third appearance of the bribe offering case as the suspect and the third appearance of the statement 0 stated that the Defendant “I would like to ask for direct research funds to the Defendant?” However, I would like to call for the support of research funds (3 times written by the prosecutor, 4620 page 4620 page 7 of the investigation records, 7 page 4620 of the investigation records), 'I would like to directly change the research funds, and use indirect chemicalization. In other words, I would like to call that “I would like to demand for the support of research funds and think it is difficult to do so due to lack of essential research funds” (3rd written by the prosecutor, 7°4621 page 7 of the investigation records, and 4621 page). I would like to ask the Defendant A to the 6th of the investigation service contract at the time of the conclusion of the investigation service contract.

2) At this time, the statement as a witness at this court stated that "I would like to accurately change the design of the M business to Y because I would like to sell it to the defendant," so I would like to 'I would like to talk about the counsel' without introduction of accommodation facilities, and I would like to 'I would like to see that I would like to 'I would like to see the fact that I would like to 'I would like to see the fact that I would like to 'I would like to see the fact that I would like to 'I would like to see the fact that I would like to 'I would like to see the fact that I would like to 'I would like to ask I would like to 'I would like to see the fact that I would like to 'I would like to see the fact that I would like to 'I would like to see the fact that I would like to 'I would like to 'I would like to 'I would like to ask I would like to 'I would like to 'I would like to ' I would like to '. I would like to '. I would like to '. I would like to '. I would like to '.

Accordingly, the defense counsel asked that "I will not say that we will pay the research cost in return," and asked that we will do so in detail. In addition, I stated that "I would like to ask the defense counsel for a telephone conversation on December 2, 2007 because there is a fact that the counsel asked it well because there was a deliberation on the telephone conversation, or that I would like to ask for a testimony to the effect that I would like to not do so. I would like to make a statement to the effect that I would not do so."

Finally, the presiding judge asked the prosecutor that he did not make a specific solicitation to A, and asked him that he did not make a false statement to the effect that he did not make a false request to A. In other words, on December 2007, the presiding judge asked A to the effect that he would be able to pass a deliberation on L related to the M business, and again asked A to "I would like to have tried to pass a deliberation on the M business, but did not make an indication." In other words, I asked A to the effect that "I would not know that I would have been able to know that I would not know at all."

3) The credibility of 0 statements

In the case of bribery, in order to find a defendant, who is selected as a bribe, denies the fact of the bribery at the time of the acceptance of the bribe, and has no physical evidence, such as financial materials to support it, the statement by the receiver must be admissible as evidence, and there should be credibility enough to exclude a reasonable doubt. In order to determine the credibility of the statement, not only the rationality, objective reasonableness, consistency before and after the statement itself, but also its human nature, and existence of interests derived from the statement should be examined (see Supreme Court Decision 2000Do5701, Jun. 11, 2002).

(A) the consistency and rationality of statements;

As seen earlier, the Defendant stated that each time he/she is investigated by the prosecution about whether he/she ordered the conclusion of the service contract, whether the research fund was subsidized for the passage of deliberation, whether Defendant A explicitly demanded the subsidization of research funds, etc.

First of all, the denial of the fact that he ordered the conclusion of the service contract by the prosecution before receiving the AF, AG, AH and the substitute investigation by the prosecution can be understood as making the statement at the hearing to avoid the situation in which the suspicion of offering of a bribe can be applied, and thereafter the statement was just thereafter, it cannot be said that there is no credibility in the subsequent 0 prosecutor's statement. Further, the defendant 0's statement that the defendant 1 has a characteristic of support for the recovery of relationship with the defendant A aggravated due to the consideration for the request by the defendant for the pass of the deliberation in the future and the selection of the guidance professor. In addition, it is acceptable in light of the objective situation as seen below, the relation between the defendant A and the defendant, etc. cannot be said to be contradictory or unreasonable.

0. At the first time, the court made a statement to the effect that the bribe of the service price was denied, and at the same time, the prosecutor made a statement in the presence of the defendant A, who was investigated and prosecuted by the prosecutor due to his own statement, and was refused to answer the psychological burden of the defendant A (the defendant A, who was the subject of restraint, was also unable to make an unfavorable statement to the defendant A). In addition, the purport of the 0th statement that denies the bribe of the service price, is that the defendant A was asked to the extent of his knowledge in light of the subsequent statement, is not a clear solicitation, but it can be understood that the defendant A was asked to the extent that he did not have any such solicitation in light of the subsequent statement). In this court, it is difficult to easily believe the above statement by the defendant that the first time did not understand the reasons that the defendant made a statement to deny the bribe of the service price, and that the research expense was not provided in return for the deliberation.

In full view of the above circumstances, it is difficult to view that the overall statement was contradictory or unreasonable as to the developments leading up to the conclusion of this service contract, whether Defendant A made a request for deliberation, and whether the conclusion of the above service contract was related to the deliberation of the Seoul L Committee.

B) The AG of the evidence Z, consistent with the statements of 0, will be helpful for deliberation from the prosecutor's office to this court, and at the request of the NN to conclude a service contract with the defendant, but the above service contract was not related to the design business of the Z, and the cost-bearing is also borne by N and Z, and eventually, the service contract was concluded with AB with N and Z to the effect that the above service contract was ultimately borne by N and Z, and the service result was not related to the design business of M and Z. At the time, BD, which was a working person of the Z, stated to the effect that it was a long time at the prosecutor's office, but is related to the deliberation that was under way at the request of N and the service contract was concluded. As above, the ZG and BD stated to the effect that they were aware that they concluded a service contract related to the deliberation consistently. The above two parties' common statements are supported by the facts charged in this case.

In addition, AF, the vice president of N, made a statement to the effect that he/she would enter into a service contract with the defendant to the persons related to the Z under the direction of 0. The above statement supported the statement of 0 that he/she would have provided research funds to the defendant in connection with the deliberation of the LF.

C) At the time of the investigation of the instant case where there was a motive for 0 to make a false statement, it is recognized that 0 was detained by the prosecution in the case of the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Embezzlement) against himself and was investigated.

However, it is difficult to find out circumstances to readily conclude that the prosecutor made a statement unfavorable to the defendant A differently from the fact in order to obtain favorable disposition in the case against him, and even after the case was prosecuted, the defendant did not make a statement consistent with the progress of the conclusion of the service contract that the defendant A asserts that the defendant A introduced the U-C experts at the request of 0, but the defendant did not make any such statement at all). The reason for concluding the service contract was that the purpose of supporting the defendant A's research funds was to clarify the defendant's request related to the deliberation and did not explicitly state that the other party had been aware of the fact.In other words, it is difficult to view that the defendant made a false statement at the prosecutor's office to be subject to favorable disposition in the case against him.

In full view of the aforementioned various circumstances, it is difficult to deem that Defendant A’s statement 0 on the sole basis of the circumstances alleged by Defendant A’s defense counsel has reached the degree of credibility. Whether there was an illegal solicitation regarding the passage of the Seoul L Committee’s deliberation by Seoul Metropolitan Government.

1) Relevant legal principles

In the crime of offering a bribe to a third party under Article 130 of the Criminal Code, the term "Bribery" means an illegal or unfair benefit delivered to a third party by mediating an illegal solicitation in connection with the public official's duties, and the term "illegal solicitation" includes not only unlawful but also unfair cases in violation of social rules or the principles of good faith. In determining whether an illegal solicitation has been made, not only the contents of the duty or solicitation, the relationship with the benefit provider, the difference between the benefit provider and the circumstances and timing of giving or receiving the benefit, but also the fairness in the performance of duties, social trust and the possibility of purchasing it

In light of the legal interests protected by the law of bribery, the standard for determining whether the number of benefits is suspected of being fair in the performance of duties from the general public. Therefore, even if the performance of duties subject to solicitation is not illegal or unreasonable, if the performance of duties in question is connected to a certain consideration relationship and the delivery of consideration for the performance of duties is made, it can be deemed as constituting "unwritten solicitation". Such solicitation may be made explicitly and implicitly, as well as explicitly and explicitly, and it does not require a public official to commit an unlawful act in response to an unlawful solicitation (see Supreme Court Decision 2004Do4959, Nov. 16, 2007).

The purpose of "illegal solicitation" in the crime of providing third party acceptance is to prevent the scope of punishment from becoming unclear. As such, there is an understanding on the relationship of compensation, explicitly or implicitly, which provides for the illegality of solicitation. If there is no understanding on the relationship of compensation with a third party in connection with such solicitation, then it cannot be evaluated that solicitation was unlawful retrospectively solely on the ground that there was a receipt of money or valuables from a third party. At least, if it is apparent that the parties were not able to have clearly predicted whether to pay money or valuables to a third party and there is a probability that the payment of money or valuables to a third party was decided by another motive at the time of performing their duties, the part corresponding to the consideration presented by the parties may be deemed to have been aware or understanding on the relationship of compensation at the time of the solicitation, and it cannot be deemed that there was an illegal solicitation (see Supreme Court Decision 2006Do8568, Jun. 12, 2008).

2) The following are arranged by arranging the statement 0 made by the prosecution and the statement made by this court. Although Defendant A does not explicitly require research funds, Defendant A thought that Defendant A would demand research funds through the horse and behavior of Defendant A, Defendant A would have attempted to provide guidance professors to help the former M business deliberation. Defendant A would have attempted to provide research funds by entering into a service contract with Defendant A in order to recover the relationship with Defendant A due to the problem of appointment of guidance professors, which would have been under the relationship with Defendant A in the future. While the Z and cost-bearing problem are not consistent with the Z and cost-bearing problem, Defendant A would have been provided with research funds which were deferred by the L Committee of Seoul for the agenda related to M business, which was first supported by the decision of the L Committee of Seoul for the agenda related to the M business, which was delayed to enter into the service contract. Defendant A would have been able to undergo the deliberation without the introduction of accommodation facilities of the L Committee for the M business agenda through the Seoul Metropolitan Government Committee, Defendant A would have been able to recover the relationship with Defendant A.

3) Determination

The aforementioned statement alone is difficult to recognize that Defendant A made an explicit solicitation to allow Defendant A to pass the deliberation of the Seoul Metropolitan City L Committee without introducing accommodation facilities.

However, in full view of the following circumstances, it can be sufficiently recognized that there was a solicitation to the effect that the case would help the passage of the deliberation and that Defendant A would be able to fully know that Defendant A would provide research funds in response to such request (the case cited by Defendant A’s defense counsel is a case where there was no specific pending issue in which profit providers and public officials would make a solicitation between Defendant A and Defendant A, and the case is different from that of this case where 0 would be prior to the deliberation of the M improvement zone and Defendant A would have provided research funds on the M project agenda in the above deliberation, and the decision of withholding the M project would have provided the research funds to Defendant A. In this case, there was a specific pending issue that the M project would pass through the Seoul LA Committee without any condition such as the introduction of accommodation facilities, and in fact, this was stated to the effect that this would have requested a phone in relation thereto. Therefore, it is difficult to view that Defendant A would have concluded a service contract with AB as a result of other motive irrelevant to the expectation that the M project would have been in favored by phone.

① Although the prosecutor stated that Defendant A was able to receive assistance from the Committee’s member upon the request of the Committee, the prosecutor made a statement to the effect that there was no understanding on subsidization of research expenses for the purpose of deliberation with Defendant A. However, the prosecutor made a statement to the effect that Defendant A was able to provide support for research expenses by telephone. However, the prosecutor’s questioning on whether there was contact with Defendant A in connection with the service contract on December 1, 2007 at the time of signing the contract, which would have been 0, would have been able to introduce the concept of U-City at the time of signing the contract. However, the 0th president asked Defendant A-C-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U.

According to the e-mail (the e-mail sent by the ZN to B, the 8:284: hereinafter the same shall apply) and the N, the N and the Z decided to change the design from the end of 2006 to increase the rate of profit, and then the N and the Z continued to hold consultation with the members of the Seoul Metropolitan Government including Defendant A with respect to the change of the design, and the e-mail sent by the BJ to BA on February 2, 2007 (the contents of consultation with the members of the Committee on Deliberation, the investigation records, the 1:3rd 1: 207 E-mail (the e-mail sent by the ZN to the ZN), it is difficult to find that the Z had consulted with the other members of the Seoul Metropolitan Government on the change of the design at the time of consultation with the former members of the Committee on Design Change, and it is difficult to recognize that the Z had consulted with the other members of the Committee on Design Change, in light of the following circumstances:

③ The time when Defendant A decided to subsidize the research expenses (0 was stated to the effect that Defendant A was determined to subsidize the research expenses before the date the Seoul L Committee's postponement decision was made in the prosecution and this court) was the time when the R building was changed to the design of the city environment improvement zone for M business by studa, and the time when AB entered into a contract with 2 and was paid the first payment. The time when “the change of the designation of the urban environment improvement zone for M” was made to be deferred by the deliberation of the Seoul L Committee on December 26, 2007, which was decided to be deferred by the deliberation of the Seoul L Committee on December 26, 2007. In addition, the conclusion of the contract between AB and Z was made only when the Seoul Metropolitan Government Committee was deferred.

④ In light of the BD’s statement (BD had taken place before the prosecutor’s examination to find the Defendant A after the withholding decision was made, it was clear that the prosecutor’s examination was made after the withholding decision was made, but it was not clear that it was made after the postponement decision was made. The same did not seem to be negative that he did not talk about that he would have been imprising. It was the same.). In view of the BD’s prosecutor’s statement, the prosecutor’s statement, the investigation record, and the investigation record page 4605, the Z did not appear to have obtained the Defendant A by visiting the Defendant A who had been able to go through the deliberation of the L Committee without any condition such as the introduction of accommodation facilities, etc. after the said postponement decision was made.

⑤ Defendant B was indicted of having demanded A to enter into a service contract with BS University and Industry-Academic Cooperation Foundation (0 stated by the prosecution that Defendant B would be divided into professors who are members of Seoul City Council with a pro rata Do with a pro rata Do with a pro rata Do with a subsidy for research expenses) in return for the use of influence on members of the Seoul L Committee and transferred 40 million won to BY and G graduate students who were affiliated with the above professors as personnel expenses. Defendant B did not appear to have been aware of the fact that Defendant B was in cash-related operating expenses of the 2008 global city forum with A, a member of the Seoul L Committee, and Defendant B did not appear to have been able to have been aware of the fact that Defendant B was in cash-related operating expenses of the 200-year graduate school, and Defendant B was in the name of Defendant B and the 40-year graduate school from which the above professors were in cash-related with the above professors at the 24th session on November 28, 2007.

④ Although Defendant A attended the deliberation of the Seoul L Committee on November 28, 2007 at which the decision of postponement was made, and had experienced critical opinions on the matter subject to the alteration of M business, Defendant A was not present at the Seoul L Committee on December 26, 2007 (the part that was recognized by Defendant A from the prosecution). In light of the statements of Defendant A and various circumstances as seen above, Defendant A was not present at the Seoul L Committee on December 26, 2007, which was held on December 26, 2007, due to the fact that Defendant A’s defense counsel was not present at the request of 0, thereby seeking to give critical opinions or not (the defendant’s defense counsel claimed that he was not present for the preparation of overseas answers, but it is persuasive that Defendant A B entered into a service agreement with the Z manager from the beginning of 2007, and did not participate in the first one’s service payment after receiving the first service payment, and that business agenda was conditionally passed in that deliberation.

7) Defendant AB’s introduction entered into a fake service contract of KRW 250 million with respect to the BW project implemented by Company V, which is the major shareholder of N, which is the representative director. Defendant AB engaged in providing advice and advice in performing the service contract of KRW 300 million with the service cost of KRW 300 million entered into by the BT office, which is the design office of the said project. The process of entering into the said two service contracts and the process of entering into the instant service contract is very similar to the process of entering into the instant service contract. In light of the relevant provisions and the statements of the AC and the AJ, etc., Defendant A appears to have caused the Seoul Metropolitan Government KR to enter into the contract by having the said two organizations as a member of the L Committee, and as a direct party to the service contract entered into with the said two organizations.

D. In accordance with the service contract concluded between the Z and AB, whether the service was actually performed in accordance with the service contract between the Z and the AB, and whether the service was actually performed in accordance with the service contract between the Z and the AB is an important material in determining the bribe of the service price of this case. According to the following circumstances acknowledged by the evidence above, it is difficult to deem that the service contract was actually performed in accordance with the service contract, and rather, the above service contract is concluded with a falsity for giving money to AB.

① While the title of the services indicated in the service agreement is “Analysis of vehicles, pedestrians, accessibility, and related plans based on N construction,” the title of the materials submitted to the Z is “BV Research on U-C Application Methods to the Z.” According to the language and text of the service agreement, the content of the services should have the impact on traffic arising from the construction of a new building. The materials submitted by AB are considered to be remote from the content of the services described in the initial service agreement. According to the AC’s prosecutor’s statement, AB mainly conducted traffic impact assessment. Nevertheless, it is difficult to understand that AB had been in charge of U-C-related services that it had not been seen during that period (the defendant’s attorney submitted by the defendant Gap as an expert in U-C-D-related services). However, AC intended to develop the relevant U-C-related service sector by taking account of the fact that the U-C-related service was mainly conducted by the defendant who had been interested in U-C-related services in the AB-related service.

② In light of the fact that “R” buildings were prepared on the premise that they are composite buildings (the “R” buildings are predicted on the premise that they are composite buildings), and around January 2008, when the said materials were installed, “R” buildings had already been passed through the deliberation with changed designation without changing the purpose of use into a lus single building at the 27th Seoul L Committee, which was opened on December 26, 2007 (as seen above, N and design offices decided the change of designation from the end of 2006 to the members of the Seoul L Committee at the end of 2007, and consultation with the members of the Seoul L Committee at the end of 2007. In light of the fact that the above buildings had already been sold to Y by lusing the above buildings at the end of 2006, the above materials cannot be seen as having been destroyed by the design plan of the complex building around the end of 2006 (the above 100,000,000 won).

(e) Whether the service price received by AB constitutes a bribe;

According to the above evidence, the following circumstances are acknowledged.

(1) According to the current Act and subordinate statutes [Article 113(5) of the former National Land Planning and Utilization Act (amended by Act No. 8819 of Dec. 27, 2007), Article 113-2(1)1 of the former Enforcement Decree of the National Land Planning and Utilization Act (amended by Presidential Decree No. 20535 of Jan. 8, 2008), Article 63 of the former Ordinance on Urban Planning (amended by Ordinance No. 4569 of Aug. 29, 2008)], if a member of the Seoul Urban Planning Commission directly takes part in a service or other means with respect to the agenda on which he/she deliberated or consulted, he/she shall be excluded from the advice of deliberation, and the above provision shall apply mutatis mutandis to the Seoul Urban Planning Committee. Thus, the act of Defendant 10 million won, a member of the Seoul Urban Planning Commission, which was a member of the Joint Committee, to enter into a service contract with Defendant 1B and 110 million won, was sufficiently doubtful from the general members of the Seoul Urban Committee.

② Defendant A, the president of the H graduate school at G University, completed the highest graduate school SP course at G University, and gave instructions as a third party to 0 who was scheduled to enter the H graduate school doctorate course. However, the Prosecutor expressed Defendant A, a member of the Seoul L Committee at the Prosecutor’s Office, “SPP” in the process of deliberation, and expressed Defendant A as “passage tax” in the process of deliberation. Defendant A, a member of the Seoul L Committee at the Seoul L Committee, stated that Defendant A had the nature of the case related to deliberation along with personal purposes. As seen earlier, Defendant A, as a member of the Seoul L Committee, was one of the subjects of the Seoul Committee’s strategy for deliberation in relation to design change, it is difficult to view that the subsidization of research expenses was conducted only on the basis of private motive.

(3) As seen earlier, at the time prior to the deliberation of the Seoul L Committee, 0 decided to subsidize Defendant A with research funds to recover the relationship with Defendant A, which has been aggravated due to doctoral degree course selection problems. However, while the research funds were delayed due to the Z’s expense burden, Z entered into the instant service contract with Defendant AB in the deliberation on the amendment to the designation of the M of the Seoul L Committee’s M of the improvement zone, it is the process of concluding the instant service contract (the Defendant only introduced AB with U-C experts at the request of 0 to request for the introduction of U-C experts from 0 on the process of concluding the above service contract. However, it is difficult to view that Defendant A was aware of the fact that ZB entered into the service contract with the public prosecutor and this court, and that it was difficult to view that the first statement made by the Defendants during the process of the investigation of bribery against the Defendants.

④ As seen earlier, it cannot be deemed that the performance of services was practically performed by AB pursuant to the service agreement concluded between the Z and AB, and the amount of the service payment was large of KRW 100 million. Meanwhile, AJ, which was in charge of accounting as the Deputy Director of AB, deposited most of the above service payment received from AB under the name of the Z to the account of the employee of the Z, and did not disclose the use of cash withdrawn. Although AJ stated that all of the cash withdrawn by AJ was used as the operating expenses of the company, it was entirely insufficient to submit the grounds for the CJ’s use as the operating expenses of the company, and that it was made by the CJ’s withdrawal of cash after it was pretended to be paid to the employees of AB, it is difficult to understand the nature of the CJ’s receipt of all of the payment for services as the consideration for the entire duties of the Defendant and the CB’s receipt of the payment for services in cash from time to time with the view of an indivisible nature of the CJ’s receipt of the payment for the Defendant’s payment in cash.

Judgment on the Prosecutor's Claim for Collection

According to Article 134 of the Criminal Act, a bribe received by an offender or a third party with knowledge of its purpose is to be confiscated and collected as necessary. In light of the fact that the purport of the provision is to prevent a criminal or a third party from holding illegal benefits, even if a criminal does not possess such illegal benefits, a bribe cannot be confiscated or collected from a person who does not hold such illegal benefits. In the case of offering a third party bribe, the value of the bribe cannot be collected from the public official, except when the public official who is the offender holds the bribe from a third party (see, e.g., Supreme Court en banc Decision 96Do376, Apr. 17, 197).

In this case, it is doubtful that the service cost of KRW 110 million received from AB is not limited to that of Defendant A. However, since the use of the above service cost is not revealed, it is difficult to readily conclude that the service cost has been transferred to Defendant A without fail. Thus, Defendant A’s collection of KRW 110 million, which is the value of bribe, may not be allowed.

Reasons for sentencing

○ Scope of applicable sentences

Imprisonment with prison labor for not less than five years but not more than seven years and six months;

Defendant A, as a member of the Seoul L Committee, provided a bribe to a third party upon receiving an unjust solicitation from the representative of the executor of the business he deliberated on even though he/she performed his/her official duties in a fair and integrity manner. However, if a university, a research institute, is in the form of a service contract with a university, a member of the L Committee, while maintaining the representative of the executor of the business subject to deliberation, he/she should be encouraged to provide a bribe. However, if a university, a member of the L Committee, receives money in the form of entering into a service contract from him/her, he/she would not perform the deliberation of the Committee, and eventually, he/she must return to the Seoul Metropolitan Government and the Seoul Metropolitan Government citizens' damage. Accordingly, Defendant A’s improper response to his/her adverse effects is subject to criticism. In addition, Defendant A significantly damaged the general trust of the Seoul Metropolitan Government members of the L Committee’s member’s member’s duties, and thus, Defendant A’s criminal liability is very heavy (the statutory penalty for the crime of this case is provided for imprisonment for life or for more than ten years.

It is inevitable to pronounce a sentence): Provided, That considering the circumstances favorable to Defendant A, such as the absence of any criminal record against Defendant A and the fact that Defendant A seems not to have actively demanded a bribe to be given to Defendant A, etc., it is inevitable to sentence Defendant A to the extent of imprisonment with prison labor for up to five years, considering the following factors, such as the age, character and conduct, intelligence and environment of Defendant A, motive, means and consequence of the crime, and the circumstances after the crime, etc., of all the sentencing factors specified in the arguments of this case, including the crime.

The acquittal portion

1. Facts charged;

Defendant B is a professor of the department of construction of the BS University, and is operating the BZ research center within the BS University, and was commissioned as a member of the Seoul Special Metropolitan City K Committee on September 22, 2004 and worked as a member of the Seoul Special Metropolitan City K Committee for four years until September 21, 2008.

The members of the Seoul Committee are in charge of deliberation and consultation on the matters to be deliberated or consulted by the Seoul Committee, the matters delegated to the City Mayor among the matters to be deliberated by the K Committee, and the matters requested by the City Mayor among the matters related to urban planning. The Seoul Committee is divided into three sections. Among them, the members belonging to two minutes and three minutes are in charge of deliberation and consultation on the matters prescribed by relevant Acts and subordinate statutes, such as redevelopment and reconstruction, while engaging in activities as members of the L Committee comprised of the National Land Planning and Utilization Act.

0. From September 15, 2005, N Co., Ltd. established for the purpose of real estate development business, etc. to the date of September 15, 2005, is the representative director of N Co., Ltd. (N P Co., Ltd. from August 11, 2005 to February 16, 2006) and N Co., Ltd.’s site area is 9,114.90 square meters as part of the urban environmental improvement project in the Jung-gu Seoul Metropolitan Government Urban Environment Improvement Project from September 2005 to September 2005.

Defendant B was introduced on February 2006 by CB, the vice president of the CA, which is the M business commencement corporation, and around that time, 0 became more well aware of the fact that Defendant B entered the highest process ofCC at the 2S University Engineering Graduate School, which is the vice president of the CA. Defendant B participated in the 6th K Committee of Seoul, which was held on April 20, 2005 (the agenda items related to the M business among the above deliberation is deferred as a result of deliberation) and the 8th Seoul, which was held on May 17, 2005, which was held on May 17, 2005, to ensure that the 205 Seoul, which was the representative director of the CA, should remain aware of the progress of the investigation and trial, and that the 205th Seoul, which was the 60th Seoul, would continue to proceed with the 20th, which was the 205th, 205th, 200.

Since W establishes N, acquires M business in KRW 170 billion from T, it has owned 50% of N, and it has de facto been responsible for the role of the Chairperson, and 0 has made zero implement M business as N representative Director.

N around 206, 5, 24. Around the end of 2006, N passed the deliberation of the Seoul L Committee (M project was conducted by urban planning deliberation and implementation from March 18, 2005, and by the Act on the Improvement of Urban and Residential Environments) to construct a complex building equipped with ices, residential facilities, commercial facilities, hotels, etc. in relation to M business, but from the end of 2006, Oruss City was changing the design of the complex building into the Orscoping building consisting of ice only for the enhancement of profitability and profit, and entered into a contract to sell approximately KRW 850 billion in total, “R building” to the Y Investment Association (hereinafter “Y”) as modified.

It has become a situation in which the deliberation of the Seoul Metropolitan Government LA Committee should be followed.

However, in the deliberation of the 24th Seoul L Committee held on November 28, 2007, the members of the L Committee reviewed the appropriateness of the change of the purpose of the building in relation to the M urban environmental improvement master plan for M business, but avoided the negative view on the grounds that it is necessary to review the introduction plan of accommodation facilities and review the installation of an open watch tower for the general public to use it, considering the locational conditions, etc., so the above agenda was decided to be withheld.

At that time, N has already changed the design of M business to the scoppy and decided to sell the scopic building to the Y, so in order to pass the deliberation by the L Committee, it is necessary to review the adequacy of the change of the purpose of use of the building, but to persuade the L members who decided to review the plan to introduce accommodation facilities in consideration of location conditions, etc., and to withdraw the above review opinion, and there was a concern that the delay in passing the deliberation by the L Committee would cause considerable trouble to M business.

Thus, 00, 80,000,000,000 won, and 80,000,000 won, were 10,000 won and 80,000 won, and 0 and 2,000,00 won, were 70,000 won, and 80,000 won, were 10,000,000 won and 80,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,00,000,000,00,000,00,000,00,00 won.

Accordingly, Defendant B accepted a bribe in relation to his duties.

2. Defendant B’s assertion

A. The National Land Planning and Utilization Act provides that members of the Committee shall be appointed or commissioned from among the members of the Committee. Defendant B shall not be appointed or commissioned from among the members of the Committee. Defendant B shall not be a public official who is the subject of bribery in relation to the business of M, nor shall Defendant B be appointed or commissioned from the Seoul Metropolitan Government as the members of the Committee of the Committee of the Seoul Metropolitan City even before the conclusion of the service contract with A on December 17, 2007.

B. It was true that the Industry-Academic Cooperation Foundation entered into a service agreement with AA and received KRW 168 million as service price from the account under the name of the BS University. However, it was not paid as a consideration to help the members of the Seoul Metropolitan City L Committee to pass a deliberation without any conditions such as the introduction of accommodation facilities. Even if the service contract was entered into as a consideration, Defendant B was only a member of the Seoul Metropolitan City K Committee, and was not a member of the Seoul L Committee. Thus, Defendant B did not have any official authority in relation to the deliberation of the M business urban environment improvement project implemented by N, which is subject to deliberation by the Seoul Metropolitan City L Committee. Accordingly, Defendant B cannot be deemed as having received a bribe with respect to the duties of public officials.

3. Determination

A. Determination as to whether Defendant B is a public official subject to the crime of bribery

A public official under Article 129 of the Criminal Act refers to a person who is engaged in the affairs of the State or a local government and a public corporation equivalent thereto, and whose duty is not limited to a simple mechanical or physical one, based on the legal basis, refers to a person whose duty is not limited to a simple mechanical or physical one. Thus, a consultation with the head of the Si/Gun/Gu regarding urban planning and a member of the K Committee established to deliberate on matters concerning urban planning of the relevant Si/Gun/Gu shall be a public official under Article 129 of the Criminal Act (see Supreme Court Decision 96Do1703, Jun.

According to the above evidence, on December 17, 2007, when Defendant B entered into a service contract called “A” and “PCM access service contract for urban development project,” Defendant B and “A” and “CM access service contract for urban center development project, it can be acknowledged that he was engaged in the duties of deliberating on matters concerning the urban planning of Seoul Special Metropolitan City as a member of the Seoul K Committee, and as seen below, the duties of members of the Seoul K Committee are local governments’ public duties (the fairness of their duties needs to be guaranteed) based on laws and regulations. As such, Defendant B, who was engaged in public duties as a member of the Seoul K Committee, is a public official subject to bribery (the defense attorney of Defendant B, who was appointed or commissioned as a member of the Seoul L Committee of Seoul Special Metropolitan City).

Although Defendant B asserted that it does not constitute a member of the Seoul Metropolitan City L Committee, the circumstance that Defendant B was not a member of the Seoul Metropolitan City L Committee is only an issue to determine whether it was related to Defendant B’s duties by exercising influence on members of the Seoul Metropolitan City L Committee.

B. Determination on business relationship

1) Relevant legal principles

Bribery is a process of performing duties and trust in society, and the legal interest of which is protected directly by the law, so the bribery is not a bribe before or after the violation of duty, the existence of solicitation, the time of receiving money and valuables, and the execution of duties. Therefore, a bribe is not a bribe.

The term "duty" in the crime includes not only duties prescribed by Acts and subordinate statutes, but also duties related thereto, duties which were in the past or are not practically in accordance with the division of duties in addition to duties in the future, but also duties which are closely related to duties under the general authority or duties which are closely related to duties under the law, or duties which are customary or de facto under the jurisdiction and duties which may assist or affect the decision-making authority, and other duties which public officials shall take charge of official duties according to their positions (see, e.g., Supreme Court Decisions 2003Do1060, Jun. 13, 2003; 9Do2530, Nov. 9, 199; 200Do2251, May 10, 2002).

The duties referred to in the crime of bribery include not only the duties under the jurisdiction of the public official, but also the acts closely related to or in fact engaged in the duties. However, whether specific acts belong to the duties of the public official shall be determined by taking into consideration the practical aspects of the public official’s performing duties, together with the formal aspects that the act was performed as part of the public official, and the practical aspects of whether it is deemed necessary reasonably in relation to the duties that the public official should perform (see, e.g., Supreme Court Decision 2001Do670, May 31, 2002).

2) On December 17, 2007, the provisions of the laws and regulations on the organization and duties of the Seoul K Committee and the LS University under the laws and regulations on the organization and duties of the L Committee, the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (amended by Act No. 8785 of Dec. 21, 2007), the former Enforcement Decree of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (amended by Act No. 8819 of Dec. 27, 2007), the former Enforcement Decree of the Act on the Planning and Utilization of National Land (amended by Presidential Decree No. 20535 of Jan. 8, 2008), the former Ordinance on Urban Planning (amended by Ordinance No. 4569 of Aug. 29, 2008), the former Enforcement Decree of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (amended by Act No. 8785 of Dec. 21, 2007);

The Seoul Committee shall be comprised of four public officials appointed or commissioned according to the criteria for selection prescribed by law, four public officials of the City Council, four attorneys of the City Council, one journalist, one head of the Gu, and 14 professors. The term of office of the members of the Committee shall be able to be reappointed only once every two years. The Seoul Committee shall deliberate on the designation and change of specific-use zones of development restriction zones or urban natural park zones of urban natural park zones, etc., designation and change of urban planning facilities, designation and change of urban development zones, designation of urban development zones and improvement zones, designation and improvement plans of improvement zones. The Seoul Committee shall be divided into 1, 2, and 3. Each subcommittee shall be composed of 5 to 9 members of the Seoul Committee. The Committee shall deliberate on matters concerning the alteration plan of special-purpose areas, etc. in the first subcommittee, and the second subcommittee shall deliberate on matters concerning development activities, filing objections, improvement projects, and matters concerning the determination or alteration of district unit planning zones and district unit planning zones.

The L Committee of Seoul shall be divided into the first committee and the second committee. The first committee shall consist of 7 members of the second subcommittee and 7 members of the Seoul KS Committee, and the first committee shall deliberate on the rearrangement zone and improvement plan under the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents. The second committee shall be composed of 7 members of the third subcommittee and 5 members of the Seoul KS Committee, and the second committee shall deliberate on the designation of district unit planning zones and district unit planning under the National Land Planning and Utilization Act. The second subcommittee members and the third subcommittee members of the Seoul KS Committee shall be the members of the Seoul KR Committee and all members of the third subcommittee shall be separately commissioned by the Seoul KR Committee.

3) Determination as to whether the act of assisting M business to pass a L deliberation by exercising influence on the members of the Seoul Metropolitan City Committee as members of the Seoul K Committee is related to Defendant B, which is the Seoul K Committee members.

In order for the crime of acceptance of bribe to be established, since public officials need to accept a bribe in relation to their duties, Defendant B, a member of the Seoul Committee of the Seoul Committee, shall exercise influence over the members of the Seoul Committee of the Seoul Committee, so that M business can pass through deliberation, we will examine whether it is related to the duties of the members of the Seoul Committee of the Seoul Committee.

First of all, it is clear that the deliberation by the L Committee of Seoul is not included in the duties of Defendant B who was not a member of the Committee of Seoul Metropolitan Government.

Then, this paper examines whether the act of assisting the members of the Seoul Metropolitan Government L Committee to exercise influence on the members of the Seoul Metropolitan Government L Committee constitutes "an act closely related to the duties of the members of the Seoul Metropolitan Government K Committee."

The term "act closely related to the duties" refers to an act that is not included in the scope of his duties as a public official, even though it is not included in the scope of his duties. ① Defendant B is affiliated with the first subcommittee from September 2004 to September 2006, the first member of the Seoul K Committee, the first member of the Seoul K Committee, which is the term of office, belongs to the first subcommittee. This is not allocated from September 2006 to September 2008, because Defendant B was not a member of the Seoul K Committee at the time of entering into the instant service contract, and thus, Defendant B did not have been a member of the L Committee at the time of entering into the instant service contract. ② Some of the members of the Seoul K Committee are members of the Seoul K Committee, but it is difficult to see that Defendant B used the former Committee's position to deliberate on matters different from that of the Seoul K Committee, which is independent member of the Committee, and ③ Defendant B's act of using the latter's position in the direction of deliberation and resolution by the Committee's members can not be seen.

In light of the fact that Defendant B’s act of serving as a member of the Seoul Metropolitan City L Committee at any time because it is likely that the division and allocation could be made again, or the deliberation on the rearrangement zone conducted by the Seoul L Committee at the Seoul Metropolitan City L Committee is a part of the Seoul Urban Planning, Defendant B’s act on the ground that it is a part of the Seoul Urban Planning. However, as seen above, the duties of the Seoul K Committee and the duties of the members of the Seoul L Committee are separated pursuant to the laws and regulations and the Seoul L Committee is a member of the Seoul L Committee, and the Seoul L Committee cannot be deemed as a part of the internal duties of the Seoul City. In light of the fact that the two committees cannot be deemed to be formed by the internal duties division of the Seoul City, and that the act of the Seoul K Committee’s act of having influence on the deliberation of the members of the Seoul L Committee cannot be deemed to be related to the duties of Defendant B, a member of the Seoul Committee (the Supreme Court precedents cited by the prosecutor on the ground as above, the Supreme Court precedents cited by the prosecutor cannot be seen as an internal duties division of duties.

Thus, even though the issue is whether the act of Defendant B, who is a member of the Seoul K Committee, to assist the members of the Seoul L Committee in passing the M business by exercising their influence on friendship, constitutes referral of matters belonging to other public officials' duties, and if money and valuables were received in relation to such act, it can be said that the above act is included in Defendant B's duties or is closely related to his duties, and there is no evidence to acknowledge that Defendant B received a bribe from 0 in relation to his duties.

Thus, the facts charged against Defendant B constitute a case where there is no proof of crime, and thus, it is not guilty under the latter part of Article 325 of the Criminal Procedure

The presiding judge and judges;

Judges Kim Jae-han

Judge Kim Jae-han