Defendant

Defendant

Dog-Appellee (prosecutions, public trials)

Law Firm Roon, Attorney Park Ba-han

Incheon District Court Decision 2011Gohap863 Decided February 22, 2012

The judgment of the court below is reversed.

A defendant shall be punished by imprisonment for not less than two years and six months.

1. Summary of grounds for appeal;

A. Legal principles

1) The instant voice files and records that Nonindicted Party 1 (the Nonindicted Party in the judgment of the Supreme Court) recorded the contents of conversation with the Defendant are missing, and the content of conversation has also appeared to be dissatisfy, so it is doubtful as to whether the order of conversation between Nonindicted Party 1 and the Defendant was recorded.

2) The said audio recording file is not only a copy that does not have the original of the recording, but also a copy of the original without any artificial reproduction, such as compilations, in the course of duplication, and it is also difficult to exclude the possibility that a digital recorder already deleted some conversations from the original which made a digital recorder and copied the file with a computer.

3) Therefore, the court below found that the above audio files and recording records were admissible as evidence and found guilty of the facts charged in this case on the ground that they were inadmissible. The court below erred by misapprehending the legal principles on admissibility of evidence, which affected the conclusion of the judgment.

B. Error of mistake

1) The Defendant did not simply file the instant lawsuit with a view to pressure Nonindicted 4 cooperatives, knowing that there was no possibility that he/she would win the civil lawsuit in order to compensate for losses suffered from the illegal or unjust disposition of designation of land scheduled for replotting.

2) The Defendant did not comply with the instant conciliation agreement, but did not threaten Nonindicted 1 to hold consultations, etc. necessary for the completion of the said land readjustment project, and Nonindicted 1 did not agree on the conciliation agreement by being out of the Defendant.

3) Nevertheless, the court below determined that the mediation agreement of this case was completed by threatening Nonindicted 1 as if the defendant did not respond to the demand of mediation after filing the lawsuit of this case where there is little possibility that the defendant won the case. Thus, the court below erred by misunderstanding the facts, which affected the conclusion of the judgment.

C. Unreasonable sentencing

The sentence sentenced by the court below (three years of imprisonment) is too unreasonable.

2. Determination

A. Judgment on the misapprehension of legal principles

1) Where a recording tape which has recorded the contents of conversation between the defendant and the other party is produced as evidence and the defendant does not agree to use the recording tape as evidence, it is proved that the contents of the defendant's statement recorded in the recording tape have been recorded as stated by the other party's statement at a preparatory hearing or during a public trial pursuant to the proviso of Article 313(1) of the Criminal Procedure Act in order to use as evidence the contents of the defendant's statement recorded in the recording tape as evidence, and it is also acknowledged that the statement was made under particularly reliable circumstances. Moreover, in cases where the recording tape is an original or a copy of the recording tape, taking into account the risks of editing and manipulation by the author's intent or specific technology, it should be proved that it is a copy of the original without any artificial adaptation such as editing in the duplication process.

2) Recognizing the following circumstances acknowledged by the evidence duly adopted and examined by the court below, namely, ① Nonindicted Party 1 copied the original recording file stored in his office immediately after the recording of the digital recording apparatus due to the limitation on the capacity of recording of the digital recording apparatus in recording conversations with the Defendant, and continued to record the digital recording apparatus’s conversations with the Defendant again after deletion of the original file of the digital recording apparatus, and repeating such processes thereafter. ② Nonindicted Party 1 determined that it was impossible to find out any trace of editing as a result of appraising the above digital recording apparatus and each audio file through diverse analysis methods widely used internationally in the Supreme Prosecutors’ Office Scientific Investigation Office; ③ Nonindicted Party 1 at the prosecution and court of the court below, copied the recording file directly with the Defendant to the computer; ④ Nonindicted Party 1 also stated that the recording file was identical to each other’s original recording file without any distinction between the Defendant and the Defendant; ④ Nonindicted Party 1 also stated in the prosecutor’s office and court to the effect that the content of the recording was not identical to each other’s written on December 14, 2010.

3) Therefore, the court below's decision that each of the above audio files and the transcripts are admissible is just and there is no error in the misapprehension of legal principles as to admissibility of evidence, which affected the conclusion of the judgment, and this part of the defendant's assertion is without merit.

B. Judgment of mistake of mistake

1) Facts of recognition

The following facts can be acknowledged in full view of the evidence duly adopted and examined by the court below and the court below.

A) On July 9, 2002, a non-indicted 4 association authorized the establishment of a land readjustment project and the implementation of a land readjustment project for 484,620 square meters for ○○○ △△dong (number 1 omitted) in accordance with the former Land Readjustment Project Act from the ○○ City Mayor on July 9, 2002, and then applied to the head of ○○ Metropolitan City △△△△△△ (hereinafter “head of △△△”) on December 13, 2004 for authorization of the land readjustment plan for the land readjustment project in the △△ City on December 27, 2004.

B) Meanwhile, the ownership transfer registration was completed in the name of Nonindicted Party 2, who is the Defendant on the ground of sale by voluntary auction on September 5, 2003, on the ground of the public sale on January 24, 2003, the land of the said (number 3 omitted), 365 square meters, 271 square meters, and 446 square meters in the same (number 4 omitted), which was located in ○○○○ △△-dong, △△-dong, △△△-dong, (number 2 omitted), and the land of the said (number 3 omitted) was completed in the name of Nonindicted Party 3 on the ground of the public sale on December 13, 202.

C) In accordance with the land substitution plan authorized as above, Nonindicted Co. 4 designated and publicly announced a land substitution plan on December 28, 2004, by applying the evaluation method of land substitution, the principle of land substitution in lots, the minimum reduction rate of 1) 0%, etc. The land substitution plan was designated and publicly announced as a land substitution plan on December 28, 2004. As to the land (number 2 omitted), “304.4 square meters (right size 365 square meters),” which is a general residential area, (number 3 omitted), and as to the land above (number 3 omitted) and (number 4 omitted, (hereinafter referred to as “2 omitted) 277.5 square meters (right size 277.5 square meters) and (hereinafter referred to as “3 omitted) 278.6 square meters (right size 439.5 square meters) which is a general residential area.

D) After February 7, 2005, Non-Indicted 2 and Non-Indicted 3 filed a lawsuit seeking revocation of designation of land substitution plan against Non-Indicted 4 association on February 7, 2005, and in the first instance court, since all of the affairs concerning authorization of land substitution plan and authorization of land substitution plan fall under the state affairs delegated to the head of a local government, which are delegated with the head of a local government in accordance with the provisions on delegation and entrustment of administrative authority, the ○○ Metropolitan City Mayor re-entrusted the affairs to the head of a △△△△△△ pursuant to the Ordinance on Delegation of Affairs to ○○ Metropolitan City, which is null and void since they are subject to state affairs beyond the scope of the legislative authority, and thus, the above disposition of land substitution plan was unlawful on the ground that the head of ○○ City, which is not the legitimate authorized head of ○○ City City Mayor, and the above disposition of land substitution plan was unlawful on the ground that the above disposition of land substitution plan was rendered under the above 2005Gu528, etc.

E) Meanwhile, on June 2, 2010, the Defendant was elected from the 5th local election of Dong-dong local government, to the head of △△△, and was appointed on July 1, 2010. At the time, the head of △△△△ was held with the authority to consult and grant permission regarding the creation of a buffer green zone, etc., which is essential to implement the land readjustment project in this case.

F) On July 21, 2010, the Defendant asserted that Nonindicted Co. 4 did not pay or deposit the compensation and other operating compensation for the instant land to Nonindicted Co. 2 and 3, and filed a lawsuit claiming compensation for losses of KRW 20,000,000 for the Plaintiff and Nonindicted Co. 4, respectively, with the Incheon District Court Decision 2010Da64982, which claimed that Nonindicted Co. 2 and 3 were the Defendant.

G) On September 20, 2010, the Defendant sent a written request for special inspection to the head of the planning and audit office at the △△△△ Office, stating that Nonindicted 4 sold one parcel of parking lot to Nonindicted 5 agricultural cooperatives among the land allotted by the authorities in recompense for development outlay, and demanded the Inspector Office of ○○ Metropolitan City to audit Nonindicted 4, and accordingly, the planning and audit office at the △△ Office, despite being aware of the fact that the sale of the above parking lot was not illegal, requested the Defendant to implement the conditions related to the authorization for the implementation of the project, including, but not limited to, consultation with the △△△ Office on September 30, 2010.

H) On December 14, 2010, the Defendant: (a) stated that Nonindicted 1, who was in the head of △△△ Office, was subject to a condition of KRW 2 billion in connection with the replotting of the instant land; (b) that he would not give consent to the application for the extension of the land readjustment project of this case by Nonindicted 4; and (c) that Nonindicted 4 would not unlawfully remove the building owned by the Defendant; and (d) filed a complaint with the prosecutor and detained Nonindicted 1 on the ground that Nonindicted 4 illegally removed the building owned by the Defendant; and (e) stated that the land readjustment project of this case would not be able to complete the completion of the project through the liquidation of △△cheon, etc. without the Defendant’s approval with respect to the land substitution of the instant land. (C)

자) 피고인은 이후에도 공소외 1에게 “나도 니가 그렇게 해서 오케이 해서 내면, 조정부에서 5월 27일까지 갈 게 뭐 있어? 그렇게 해서 끝내고 해야 나도 이놈아, 협조를 하든가 말든가 뭘 해서 같이 뭘 풀어주지. 너 그런 식으로 하면 너를 어떻게 자꾸 이렇게.”, “ ☆ 사무장하고 해결을 빨리 해, 이 새끼야! 그거 하라는 대로 해. 너 정말이야, 너!”, “이 자식아! 그리고 엉아가 그렇게 얘기했으면 알아들어야지. 뭔 일을 뭐 못 알아듣고 이 새끼. 자꾸... 자꾸.”, “너가 이걸 빨리 법원에서 정리를 해야, 가서 조정부에 가서 하든 뭐하든 빨리 일정을 잡아서 진행을 해야 다음 진행도 너가 수월하게 간다는 것만 알고 있어.”, “너가 가서 빨리 그 조정을 해야 이쪽 공무원 애들도 정말 뭐, 내 눈치 안보겠어?”, “조정판결이 이렇게 여기서 18억 냈고, 여기서는 8억 냈는데 이렇게 해서 조정한 거다. 해서 그렇게 해서 끝내면, 판결문 보여주면 끝나는 거지. 그거 무슨 누구 앞에서, 이 새끼야 무슨!”, “그 다음에, 그 다음에 와. 그 다음에 다 딱 갖고 와. 그러면 내가 어떻게, 어떻게 하는 방법. 내가 다 여기다 불러다 놓고 방법론을 찾은 걸...”, “여기서 백날 지랄해도 안 돼. 그러니까 내가 걔네들까지 불러서 할 테니까.”, “그거나 해갖고 와. 그래야 진행되지. 뭐 백날 해봐야 뭐.”, “두 가지를 빨리 해갖고 와. 그러면 내가 다 불러, 다 이 자리에 앉혀놓고 방법론을 찾아줄 테니까. 빨리빨리. 너 지금 백날 다녀봐야 너만 피곤해, 그건. 다 해갖고 와. 내가 시키는 대로 해, 이 새끼야! 내가 그러잖아. 너 이 새끼야. 내가 청장될지 몰랐지? 내가 얘기도 했잖아.”, “니가 가서 내가 얘기한대로. 나는 두 마디 잘 안 하는 사람이야.”, “ 빨리 해갖고 와. 야, 시끄러! 내가 다른 소리 안 하잖아. 내가 그러면 여기 다 앉혀놓고, 임마. 다, 다 여기...”, “그러니까... 이 새끼야! 나는 7년을 참았어...” 등의 말을 하면서 계속하여 피고인이 원하는 내용대로 조정에 응할 것을 종용하였다.

(j) On March 10, 201, the Defendant, through his legal representative of the above civil litigation, designated a neighboring commercial area equivalent to KRW 2,291,100,00 ( KRW 10,000,000 which was applied by Nonindicted Co. 4’s reduction rate of 30% x average trading price of KRW 229.11 x KRW 1,000) as a planned land substitution, but was designated as a planned land substitution in a residential area equivalent to KRW 526,953,00 ( KRW 229.1 x average trading price of KRW 2.3 million). Since Nonindicted Co. 4 paid additional 20% of the amount assessed as an obstacle to the removal schedule by Nonindicted Co. 3, Nonindicted Co. 3, 200, KRW 1,764,070, KRW 209, KRW 3089, KRW 23089, KRW 209, KRW 309,506, KRW 2096,506, KRW 30000.

(k) On April 8, 2011, Nonindicted 1 held a board of directors of Nonindicted 4 association on April 201, and reported the progress among them, there is a error in the assertion of the Defendant, and Nonindicted 4 association did not have any reason to pay the amount to the Defendant legally. However, if Nonindicted 4 did not accept the Defendant’s request with the authority to approve in connection with the problem, it is difficult to continue to proceed with the business, and if Nonindicted 4 association is unable to make a public announcement of construction completion and a disposition of replotting by the end of April, it is inevitable for it to go bankrupt due to the problem of repayment of loans, etc., and thus, Nonindicted 1 obtained a resolution of the board of directors

Other) On April 11, 2011, the conciliation was concluded between Nonindicted 2, 3 and Nonindicted 4 on the conciliation date of the said civil lawsuit, with the content that “(i) Nonindicted 4 shall pay Nonindicted 2, 300,000 won to Nonindicted 2, 300,000 to Nonindicted 4 by the settlement payment deadline determined by the board of representatives in accordance with the disposition of replotting against the land readjustment project district of Nonindicted 4; (ii) Nonindicted 2, and 3 shall not raise any objection to the disposition of replotting against the previous land and buildings on the land.”

(m) On June 29, 2011, Nonindicted 4 was notified by the △△ Office of the permission for the execution of construction works (octing and using) to △△cheon, followed by reporting the completion of construction to ○ Metropolitan City, and publicly announced the disposition of replotting on October 24, 201.

2) First of all, the Defendant had been aware of the absence of possibility of winning the instant lawsuit, and the following circumstances, i.e., whether the instant lawsuit was brought against Nonindicted Cooperative 4, and whether the instant lawsuit was lawfully adopted and investigated by the lower court. The appellate court rendered a ruling that “Non-Indicted Party 4 may not designate a general residential site, other than a residential site, as a planned land substitution for the instant land, and may not incur losses, and even if the Defendant incurred domestic losses, it would have been well aware of such facts, and that the Defendant would have been able to compensate for losses,” under the articles of association of Nonindicted Party 4, “The amount of liquidation money to be paid” was less than KRW 1,000,000,000,000,000, which was less than KRW 2,000,000,000,000,000,000,000,000 won, which was less than KRW 1,000,000.

3) Next, we examine whether the Defendant made a threat to Nonindicted 1, Nonindicted 1’s appearance therefrom, and agreed on the contents of the instant conciliation.

A) Intimidation as a means of the crime of intimidation refers to the threat of harm and injury that is likely to be drinking to the extent that it limits the freedom of decision-making or obstructs the freedom of decision-making. The threat of harm and injury is sufficient if it does not necessarily require the method of specification, and if it is intended to have the perception that the other party may incur any harm and injury by language or dynamics, etc., and even if not directly or indirectly, it may be indirectly made through a third party other than the person under threat. In addition, even if the perpetrator demands the delivery of property or pecuniary benefits by using illegal consolation duties based on his occupation, status, etc., and if the other party does not comply with the demand, it is also a threat of harm and injury and injury.

B) The following circumstances revealed through the evidence duly adopted and examined by the lower court in the instant case: (i) the Defendant, as the head of △△△△△△, had the authority to consult and permit the construction of △△cheon, green belt zone necessary for the implementation and completion of the instant land readjustment project; (ii) Nonindicted 4’s arbitrary removal of the building owned by the Defendant, arguing that the Defendant incurred enormous damages due to the designation of △△△△△△△△, and that it would not be possible to detain Nonindicted 1 by filing a complaint with the prosecution, or that the instant land readjustment project could not be completed through liquidation without the Defendant’s approval; and (iii) even after the instant case, Nonindicted 1 appears to have been unable to respond to the Defendant’s request for consultation on the instant land readjustment project due to Nonindicted 4’s lack of authority to respond to the Defendant’s request for consultation on the instant land readjustment project; and thus, (iv) Nonindicted 1 appears to have been unable to respond to the Defendant’s request for consultation on the instant land readjustment project, and thus, there is no possibility for the Defendant to respond to such request.

C. Determination on the assertion of unfair sentencing

The crime of this case brought a civil lawsuit against Nonindicted 4, after the Defendant was elected to the head of △△△, claiming that the disposition of designating the land substitution for replotting was unlawful, and subsequently, Nonindicted 1, the representative of Nonindicted 4 association, who is the defendant, continued to threaten Nonindicted 1 to agree on the amount presented by the defendant in the conciliation procedure of the above civil procedure and to avoid the proper progress of the business by using the authority of the head of △△△△ in relation to the business of this case, and let Nonindicted 1, who is drinking, reach an agreement on the voluntary conciliation in the above conciliation procedure, thereby acquiring the pecuniary benefits of KRW 1.3 billion from Nonindicted 4 association. In light of the fact that the Defendant, the elected public official, committed the attack related to his duties for personal benefits, the nature of the crime and the crime are very

On the other hand, there is no history of punishment exceeding a fine, and there is no history of giving up the above 1.3 billion won claim against the non-indicted 4 union in the first instance, and the fact that the non-indicted 1 wanted to take the Defendant’s wife against the defendant is favorable to the defendant.

In light of all the conditions of sentencing as shown in the arguments of this case, such as the age, character and conduct, intelligence and environment of the defendant, relationship with the victim, motive, means and consequence of the crime, etc. including those disadvantageous or favorable conditions to the defendant, the sentence imposed by the court below is too unreasonable, so this part of the defendant's assertion is reasonable.

3. Conclusion

Therefore, since the appeal by the defendant is well-grounded, the judgment of the court below is reversed in accordance with Article 364(6) of the Criminal Procedure Act, and it is again decided as follows.

Since the criminal facts and the summary of the evidence against the defendant recognized by this court are the same as the corresponding columns of the judgment of the court below, they are quoted in accordance with Article 369 of the Criminal Procedure Act.

1. Article applicable to criminal facts;

Article 3 (1) 2 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes and Article 350 (1) of the Criminal Act

1. Discretionary mitigation;

Articles 53 and 55 (1) 3 of the Criminal Act (Consideration of the favorable circumstances mentioned above)

The sentence shall be determined as per the order, taking into account the conditions of the sentencing as seen earlier, by examining the “determination on the assertion of unfair punishment.”

Judges Choi Jae-sik (Presiding Judge)

1) However, on February 14, 201, Nonindicted 4’s association abolished “minimum reduction rate of 0%” standards through the 40th meeting of the board of representatives on February 14, 201, decided to adjust the newly land substitution area, the area of right, etc. by applying the Masp reduction rate. Nonindicted 4 made a public announcement of land substitution plan (revision) from February 22, 201 to March 10, 201, and obtained authorization for the implementation of the project and the land substitution plan (revision) from ○ Metropolitan City on October 4, 2011.

2) Since -31.5% reduction rate was applied, land substitution was determined as KRW 14,98,270,000 for 307.6 square meters [480.07 square meters in area of right (478.65 square meters in area of right + 1.42 square meters in area of right] and liquidation grants.

3) Since -19.4% reduction rate was applied to -19.4%, the land substitution was determined as KRW 250,018,430, liquidation collection amount 2,270,700,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000

4) △△cheon was a small river located in the instant business district, and ○○ Metropolitan City Mayor approved the establishment of the instant business district and the implementation of the project thereof, added the conditions of authorization, such as “The project area shall be implemented after consultation with the △△△ Office so that it does not interfere with the execution of the project, and the river shall be maintained in a nature-friendly manner so that it does not interfere with the execution of the project.” However, Nonindicted 4 did not obtain the permission from the △△△ Office, which is the management office of △△cheoncheon, and Non-Indicted 4 demanded Non-Indicted 4 to bear the cost of construction, such as the installation of flood prevention walls, and it did not comply with the contents of the construction and construction cost, and it did not properly reach an agreement.

5) However, on the instant land, there was no obstacle to Nonindicted 2’s possession, and for the obstacles owned by Nonindicted 3, the amount of KRW 5,723,397 on June 20, 2005, and KRW 22,893,58 on October 24, 2008 was paid respectively under the pretext of business compensation and director expenses, and KRW 74,341,00 on September 5, 2008 was paid under the pretext of the compensation for obstacles.

Note 6) “B shall not be done for that reason,” “I shall receive more than a few million won? I shall do so?” and, therefore, I would like to discuss that I would bring about a fry, and that I would like to say that I would be subject to a condition 2 billion won which is not a condition in the Republic of Korea.”

Note 7) “The fact that the Republic of Korea would not have become a private person even if it was 2 years ago.”

Note 8) “Gindo Do Do Do Do Do, whether there is another Do Do Gu Do Do , and Ne Do Do Do Do Do ,” “W Do Do Do Do Do , Do Do Do , Do Do , Do , and Do Do Do , but Do Do , Do Do , if administrative accusation is filed, there should be no undetained Do Do Do .. Do Do , Do Do

Note 9) “In order to liquidate, the Defendant is unable to die without the private person?”

10) However, in order to receive additional payment of 20% of the appraised value of compensation for obstacles, Nonindicted Co. 4 agreed to remove obstacles until December 31, 2005 by a resolution of the board of representatives of Nonindicted Co. 4. However, the obstacles owned by Nonindicted Co. 3 were removed at the end of the end of 2008.

Note 11) The term "drawing area" means the area of land to be borne by the landowner in order to secure the area of public facilities, such as roads, rivers, parks, and construction costs, which are installed by a land readjustment project.

12) On December 16, 2010, the relocation of the above board of representatives, Nonindicted Party 1 had already explained the Defendant’s above increased land substitution plan in detail.

(13) On April 8, 201, the board of directors of Nonindicted 4 association held on April 8, 201 (hereinafter “Nonindicted 13”) held on Nonindicted 1 had no choice but to go bankrupt after the end of April, 201. If, for example, Nonindicted 1’s board of directors of Nonindicted 4 association held on April 8, 201, “I would like to be punished if I would have caused harm to the association, and later. I would like to say that, if I would like to be subject to punishment, I would like to delegate the authority to the director who would be punished. I would like to say that, if I would like to say, I would have no choice but to say that I would have made a sacrifice? I would not have to say that I would like to say that I would have any sacrifice?