(영문) 대전지방법원 2013.5.8.선고 2012고합458 판결

The defendant served as the chairman of the Daejeon Dong-gu Council 3 and the fourth Congress, and from February 2008, the defendant was in charge of the vice-chairman of the Daejeon Metropolitan City Party from around the free election day.

1. Fraud, violation of the Attorney-at-Law Act;

The defendant was willing to receive money and valuables under the pretext of soliciting relevant public officials so that they can purchase administrative property of the Daejeon Dong-gu by a free contract, by inserting B with working for several years as members of the Dong-gu Council, such as serving as the chairperson of the Daejeon Dong-gu Council.

피고인은 피해자 소●●에게 대전 동구청 행정재산인 가오도서관 건물과 토지의 매 각절차를 수의계약 방식으로 진행시켜 줄 의사나 능력이 없음에도 불구하고 , 2010 . 8 . 초순경 윤◎◎를 통하거나 직접 교통 사장인 피해자 소●●에게 ‘ 동구청 담당 공 무원에게 청탁하여 동구청과 교통 간에 가오동 도서관 부지에 관한 업무협약을 맺 고 이를 통해 수의계약을 체결할 수 있도록 해 주겠다 ' 는 취지로 거짓말하여 공무원이 취급하는 사건에 관하여 청탁 또는 알선한다는 명목으로 이에 속은 피해자 소●●으로 부터 2010 . 8 . 11 . 경 윤◎◎를 통해 피고인의 ◆◆상조 사무실에서 현금 5 , 000만 원을 건네받고 , 2010 . 9 . 27 . 경 피해자 소●●으로부터 피고인의 주거지인 대전 동구 ( 이하 주소 생략 ) 앞에 정차한 피해자 소●●의 오피러스 차량 안에서 현금 5 , 000만 원을 건 네받았다 .

Accordingly, the defendant received a sum of KRW 100 million from the victim's small and medium interest in the name of soliciting or arranging the case or affairs handled by the public official, and acquired it by fraud.

2. Fraud;

가 . 피고인은 2009 . 4 . 초순경 대전 동구 중동 소재 □□당 한약방에서 사실은 피해 자 성■■를 자유선진당의 대전 동구청장 후보자로 선정될 수 있도록 해 줄 의사나 능 력이 없음에도 불구하고 , 피해자 성■■ 에게 지방의회 선거에서 자유선진당의 동구청 장 후보자로 선정될 수 있도록 해 주겠다는 취지로 거짓말하여 피해자 성■■로부터

On April 17, 2009, the Defendant was transferred KRW 10 million to the Han Bank Account (64***************) around April 17, 200.

나 . 피고인은 자유선진당 동구청장 후보자가 다른 사람으로 전략 공천되는 것으로 정해지자 사실은 피해자 성■■를 자유선진당의 대전광역시 시의원 후보자로 선정될 수 있도록 해 줄 의사나 능력이 없음에도 불구하고 , 2010 . 3 . 11 . 경 대전 동구 대동오 거리 소재 빌딩 5층에 있는 ◆◆ 상조회 사무실에서 피해자 성■■ 에게 지방의회 선거 에서 자유선진당 대전광역시 시의원 후보자로 선정해 주겠다는 취지로 말하여 피해자 성■■로부터 현금 3 , 000만 원을 ◆◆ 상조회 사무실에서 건네받았다 .

3. Fraud;

가 . 피고인은 2009 . 12 . 10 . 경 불상지에서 피해자 성■■로부터 돈을 송금받아도 그 자금을 김△△에게 전달할 마음이 없음에도 불구하고 “ 자유선진당 ▲▲▲ 국회의원 사 무실 사무국장인 김△△에게 주어야 하니 내 계좌로 200만 원을 넣어달라 ” 고 거짓말하 여 이에 속은 피해자 성■■로부터 200만 원을 송금받았다 .

나 . 피고인은 2010 . 4 . 1 . 경 위 ◆◆ 상조회 사무실에서 사실은 피해자 성■■로부터 금원을 받더라도 그 금원을 시의원 입후보자의 사퇴를 위해 사용할 의사가 없음에도 불구하고 피해자 성■■에게 “ 자유선진당 소속으로 거론되는 유력한 시의원입후보자를 돈을 주고 사퇴시켜야 하니 2 , 000만 원을 달라 ” 고 거짓말 하여 이에 속은 피해자 성■ ■로부터 2 , 000만 원 짜리 수표 1장을 건네받았다 .

Summary of Evidence

【Crime of Paragraph 1 of the Judgment】

1. The statement to the effect that the defendant received KRW 100,00 from the small and medium right holder of the first protocol of trial;

Re-Resolution

1. Statement of the witness in the third trial record;

1. Witnesses, leaples, and the statement in the fourth trial record;

1. Documents of the Dong-gu Daejeon District Office, resident publicity materials related to the resumption of the construction works of an applicant company in Dong-gu, and news in Jungdo;

Each description of the Gu applicant(s) and investigation report(s)(s)(s).

[Case Nos. 2 and 3 of the Judgment]

1 . 제1회 공판조서 중 피고인이 한 , 성■■로부터 합계 6 , 200만 원을 받았다는 취지의

Statement

1 . 제3회 공판조서 중 증인 성■■의 진술기재

1 . 김○○ 의원 프로필 ( 동구의회 4대 ) , 성■■ 명의 계좌 거래내역서 ( 수협은행 ) , 수사보

고 ( 고소인 성■■ 제출서류 편철 ) , 성■■ 명의 하나은행 계좌 , 사실확인 의뢰에 대

Each entry of the reply made;

Application of Statutes

1. Relevant Articles of criminal facts;

Article 347 (1) of the Criminal Code (the point of fraud) and Article 111 (1) of the Attorney-at-Law Act (the point of fraud)

point)

2. Competition;

Article 40 and Article 50 of the Criminal Act (Offense of Fraud against Bilateral of Victims and Violation of the Attorney-at-Law Act)

Punishment provided for a crime of fraud against more severe victims)

3. Selection of penalty;

Each Imprisonment Selection

4. Aggravation for concurrent crimes; and

Article 37 (former part of Article 37, Article 38 (1) 2, and Article 50 (Lawsuits with the Maximum Criminality)

The actual provisions of the crime of fraud shall be aggravated for concurrent crimes as provided in the crime of fraud

5. Additional collection:

Article 116 of the Attorney-at-Law Act

Judgment on the argument of the defendant and defense counsel

1. As to the violation of the Attorney-at-Law Act

A. Summary of the argument

The defendant asserts that the defendant received KRW 100 million to the effect that the conclusion of the MOU (Business Convention) is legally able, and that there was no money received as a solicitation for public officials, in the name of a public official, through the conclusion of the MOU (Business Convention) on the land of the Lao Library located in the Dong-dong, Daejeon-dong, Daejeon.

B. Determination

1) Article 111 of the Attorney-at-Law Act receives money, valuables, entertainment, or other benefits under the pretext of soliciting or arranging a case or affairs handled by a public official. The term "public official" refers to the case or affairs handled by the public official under the pretext of mediating between the public official and the client. It shall not include simply providing labor or convenience in connection with a case or affairs handled by the public official, and the case where money and valuables, etc. are received as a price therefor. However, in the case or affairs handled by the public official, where money and valuables are received under the pretext of soliciting a case or affairs handled by the public official, it shall be provided with labor or convenience in connection with the case or affairs handled by the public official, and in the case where money and valuables are received in an indivisible manner, it shall be deemed that the entire amount of money and valuables are a pretext of soliciting the case or affairs handled by the public official (Supreme Court Decision 2007Do3044 delivered on April 10, 2008).

In addition, a solicitation stipulated in the above Article refers to requesting a public official to perform a certain act of duty, and it is not asked whether the act of duty being the object of solicitation is illegal.

2) Facts of recognition

According to the evidence duly adopted and examined by this court, the following facts can be recognized.

A) Before 2010, Bright was operated by the taxi company, which is a taxi company, and there was a new site by narrow means of transportation around 2010.

B) The Daejeon Dong-gu Office sold the Lao Library site located in the Dong-dong-dong, Daejeon, Daejeon, which is administrative property, and had a plan to raise funds necessary for the construction of the applicant company.

C) Beforemanbus, the right to boom, which was known to the general public, had a real estate of less than one billion won suitable for the traffic house and the garage in the Dong-gu Daejeon-gu area. The right to boom was examined and asked by the request.

D) The head of Singu Office of Daejeon sought a plan to sell the garbage library site, and the head of Singu Office found it to be Blue Blue House. Blue Blue Library site was suitable for using it as a new garage for traffic, and the head of Singu Office asked the head of Sinan Library to devise a plan to secure the site of the Lao Library. The head of Singu Office asked the head of Singu Office to check the sales of the Lao library site through the Defendant.

E) On April 15, 1991, the Defendant was elected as the primary representative of the Dong-gu Daejeon Council and served as a member of the Daejeon Dong-gu Daejeon Council. In particular, from July 7, 1998 to July 6, 2000, the Defendant worked as the president of the Daejeon Dong-gu Council, from July 7, 1998 to June 30, 200, and from July 7, 2000 to June 30, 202, the Defendant worked as the president of the three latter half-yearly Council, from July 10, 204 to June 30, 2006.

F) The Defendant, as a member of a freeboard Party, worked as the full-time vice-chairperson of the Dong-gu Council of the Daejeon Metropolitan City Council of the Freeboard Party, and the vice-chairperson of the Daejeon Metropolitan City Party (Evidence Records, 356 pages, 449 pages).

G) In 2010, the Defendant served as the Chairman of the Vice-Chairperson of the Vice-Chairperson of the Vice-Chairperson of Lee○, who was going to the head of the Daejeon Dong-gu (Evidence Record 294 pages).

3) The following circumstances, i.e., 00 won were lawfully adopted and investigated by this court, i.e., 00 won for the Defendant to purchase the Lao Library through a private contract with 00 million won, i.e., the office of Daejeon Dong-gu, and the member of the Daejeon Provincial Council, should sell the Lao Library site to the Defendant through open tendering methods under the Public Property and Commodity Management Act, or i.e., if the number of sites is less than the possibility of purchasing the Lao Library site by private contract, i., e., 00 won for the Defendant’s initial sale of the said Library site to 00,000 won, i., 00 won, and 200,000 won for the Defendant’s initial sale of the said Library site to 0,000 won, i.e., 10,000 won, and 30,000 won for the Defendant’s new sale of the said site through a private contract.

Even if B/L was anticipated that B/L would make a solicitation to a public official within the lawful scope and the Defendant paid money, the act of official solicitation does not require an illegal delegation, and thus, it does not affect the establishment of the crime of violation of the Attorney-at-Law Act against the Defendant. In addition, even if the Defendant among the KRW 100 million, which the Defendant received from B/L B/L, includes the cost of providing labor, convenience, etc. in relation to the public official’s affairs in relation to the sale of the original library site, insofar as the above KRW 100 million includes the fact that the Defendant made a solicitation for the public official’s affairs handled by the public official, it shall be deemed that the above KRW 100,000,000,000,000,000,

Therefore, we cannot accept the above argument of the defendant and his defense counsel.

Reasons for sentencing

[Scope of Punishment] Imprisonment with labor for not more than 15 years

[Basic Crimes] The crime of fraud against the victim's small interest in the crime 1]

[Determination of Type] Fraudulent Crime, General Fraud, Type 2 (at least KRW 100 million, less than KRW 500 million)

[Special Mitigation] The victim is also liable for the occurrence of the crime or the expansion of damage.

or significant damage has been recovered;

[Scope of Recommendation] Special Mitigation Area, 5 months to 2 years and 6 months

[ 경합범죄 ] 피해자 성■■에 대한 각 사기죄

[Determination of Type] Fraudulent Crime, General Fraud, Type 1 (less than KRW 100 million) 2

[Special Mitigation] The victim is also liable for the occurrence of the crime or the expansion of damage.

or significant damage has been recovered;

[Scope of Recommendation] Special Mitigation Zone, Imprisonment with prison labor not exceeding one year

[Multiple Crime Criteria] Imprisonment from May to three years ( = 2 years + 1 years + 1/2)

[Determination of Sentence] Imprisonment with prison labor of one year and six months;

Considering the fact that the amount obtained by the Defendant from victims is large, that the Defendant committed the crime of this case even though he had received punishment due to a violation of the Attorney-at-Law Act, and that the crime of this case in violation of the Attorney-at-Law Act is a serious crime that damages the public trust in the fair sale of administrative property by an administrative agency, it is necessary to punish the Defendant strictly.

However, the same sentence as the order shall be determined in consideration of the favorable circumstances, such as the fact that the defendant has no record of punishment of imprisonment or heavier, the victims' damage was recovered from loans, and the victim's lawsuit does not want punishment.

Parts of innocence

1. Summary of the facts charged

누구든지 정치자금법에 정하지 아니한 방법으로 정치자금을 기부받아서는 아니 됨에 도 불구하고 , 피고인은 판시 제2항과 같이 성■■로부터 4 , 000만 원을 교부받아 , 당내 경선 등 후보자 선정 과정에서 정치자금법에서 정하지 아니한 방법으로 정치자금을 기 부받았다 .

2. Determination:

A. Article 45 (1) of the Political Funds Act provides that a person who contributes or receives political funds shall be punished in a manner not prescribed by the Act. Article 3 (1) 1 of the same Act provides that "political funds" means "political funds" that include "party membership fees, support payments, deposits, subsidies, incidental revenues prescribed by the party constitution, regulations, etc. of a political party, persons who are elected through an election for public office, persons who intend to be candidates or candidates, supporters' associations, executives or employees of a political party, or other persons who are engaged in political activities, such as money or securities, and expenses that are incurred in their own political activities." Article 3 (2) of the same Act defines "donations" as "all acts of providing political funds" and "any third party bears expenses required for political activities of a person who conducts political activities, or any other person provides money or goods to a person who is exempted from or provided for free political activities, as provided by the Supreme Court Decision 200Do2860, Feb. 29, 2002>

In addition, Article 30 (2) 5-4 of the Political Funds Act provides that a person who contributes or receives a "political fund" in violation of the provisions of Article 13 (5) shall be punished. Article 13 (1) of the same Act provides that a person may not contribute or receive a "political fund" in relation to the act of recommending a specific person as a candidate in the election of public officials (referring to the election of the President, National Assembly members, heads of local governments and local councils). Article 3 (2) 2-6 of the same Act provides that "political fund" shall be defined as "political fund" and Article 30 (2) 9 of the same Act provides that "political fund" shall not be open to the public for the purpose of operation of the party's party constitution or political fund." Article 30 (2) 2 of the same Act provides that a person shall not be open to the public for the same purpose as "political fund" and Article 30 (2) 9 of the same Act shall not be open to the public.

B. According to the evidence duly adopted and examined by this court, the Defendant was a full-time vice-chairperson of the Dong-gu Council of the Seoul Special Metropolitan City, Dong-gu Council of the Daejeon Special Metropolitan City, the vice-chairperson of the Daejeon Special Metropolitan City, etc., and the Defendant was sentenced to a fine of one million won in violation of the Public Official Election Act on August 21, 2006. The Defendant was sentenced to a fine of one million won in violation of the Public Official Election Act on August 21, 2006, and the fact that the Defendant was on the part of the chairman of the Dong-gu Headquarters of the Daejeon Special Metropolitan City, who was going to the head

그러나 , 이 법원이 적법하게 채택하여 조사한 증거들에 의하여 알 수 있는 다음과 같은 사정들 즉 , ① 피고인은 2006년 공직선거법위반으로 처벌받아 2010년 지방선거 에 출마할 수 없었던 점 ( 증거기록 31면 , 78면 ) , ② 성■■는 2010년 지방선거에서 출 마하려는 계획을 가지고 있었는데 , 피고인이 성■■가 자유선진당의 대전 동구청장 후 보자 또는 대전광역시 시의원 후보자로 선정될 수도 있다는 취지의 말을 하면서 돈을 빌려달라고 말하였고 , 이에 성■■는 피고인이 자신을 지방선거에서 자유선진당의 공 직선거 후보자로 선정되게 하는데 영향력을 행사하여 주기를 기대하는 마음에서 피고 인에게 돈을 빌려주었을 뿐 , 그 돈이 피고인의 정치활동에 사용되는지 여부에 관하여 는 알지 못한 것으로 보이는 점 ( 성■■의 법정 진술 ) , ③ 피고인이 2009 . 4 . 17 . 경 성 ■■로부터 차용한 1 , 000만 원은 피고인의 정치활동이 아닌 금융기관 채무 변제에 사 용된 것으로 보이는 점 ( 증거기록 391면 ~ 393면 ) , ④ 검사가 제출한 증거만으로 성 . ■가 피고인에게 지급한 돈이 피고인의 정치활동을 위하여 제공되었다거나 정치활동에 사용되었음을 인정하기에 부족한 점 등을 종합하면 , 피고인이 성■■로부터 받은 돈은 공직선거에 있어서 성■■를 후보자로 추천하는 행위와 관련하여 수수된 돈이기는 하 지만 그 돈이 피고인의 정치활동을 위하여 제공된 것이라고 보기 어렵다 .

따라서 피고인이 성■■로부터 받은 4 , 000만 원은 정치자금법상의 정치자금으로 볼 수 없다 .

3. Conclusion

Thus, the above facts charged should be pronounced not guilty under the latter part of Article 325 of the Criminal Procedure Act because it constitutes a case where there is no proof of a crime. However, as long as the court found the guilty of the crime of fraud of Paragraph 2 when a public prosecution was instituted due to the commercial concurrent relationship, it shall not be sentenced separately

It is so decided as per Disposition for the above reasons.

Judges

Judges Ahn Byung-chul

Note tin

1) Crimes of fraud and violation of the Attorney-at-Law in a mutually competitive relationship do not apply to the sentencing criteria. However, the sentencing criteria are not applicable to the sentencing criteria.

For reference, the lower limit of the sentencing criteria for severe fraud shall be treated as the lower limit of the total commercial concurrent crimes.

(c)

2) Method of dealing with the same concurrent crimes in fraud: Determination of the type on the basis of the sum of the amount of profit, among the types,

In consideration of all the circumstances, 1 choice of the range of sentence deemed appropriate

3) If there are two or more special mitigations, the lower limit of the sentencing range recommended in the sentencing guidelines shall be reduced to 1/2, but shall be reduced to 1/2:

Since the lowest limit recommended by the sentencing criteria has already been the lowest limit of imprisonment, the minimum limit of the sentence scope may not be reduced separately.

4) The provisions of Article 45(2)5 of the current Political Funds Act are the same as those of Article 45(2)5.

5) The provisions of Article 32 of the current Political Funds Act are the same.

6) The provisions of Article 3 subparag. 1 of the current Political Funds Act are as follows.