209No4069. Public conflict (a recognized crime: Violation of the Attorney-at-Law Act)

(b) Injury;

(c) Violation of the Attorney-at-Law Act

2010849(combined). D. Violation of the Game Industry Promotion Act

(e) Abetting an offender;

1.(a)(c)(d)(E)A (59years, South and North)

2. The A.I. (59years, South)

Defendants and Prosecutor

Maximumization

Attorney Lee Jong-soo, et al. (for the defendant’s rightA),

1. Busan District Court Decision 2009Dadan2958 Decided November 3, 2009

2. Busan District Court Decision 2009Dadan939 decided February 10, 2010

209 Highest 1598 (Joint), 2010 Highest 68 (Joint) Judgment

May 24, 2010

Of the judgment of the court below of first instance and the judgment of the court of second instance, the part on the defendant’s rightA shall be reversed. Defendant’s rightA shall be punished by imprisonment with prison labor for one year and two months

One color book per page (No. 1 of the Busan District Court 2009Kadan939) and one yellow book per page (No. 2 of the evidence of the Busan District Court 2009Kadan939) incurred in the seized plastic box shall be confiscated from the defendant A, respectively.

The Defendant’s rightA collected KRW 135,000,000,000. The Defendant’s appeal filed by the Defendant Company A1 is dismissed.

1. Summary of grounds for appeal;

A. Defendant A’s assertion of misunderstanding of facts and misapprehension of legal principles

(1) As to the violation of each Attorney-at-Law among the cases No. 2009Do4069

(A) Violation of the Attorney-at-Law Act in July 2008

1) misunderstanding of facts

피고인 및 피고인의 변호인은 피고인이 오C으로부터 주식회사 ◇(이하 ◆이라고 한다)의 대표이사로서 활동에 따른 실비변상, 그 수고에 대한 보상, 급여 명목으로 7,300만 원을 수수한 사실이 있을 뿐, 원심 판시 기재와 같이 청탁명목으로 이를 수수한 사실이 없는데도 원심이 이를 간과함으로써 사실을 오인하여 판결에 영향을 미친 위법이 있다고 주장한다.

2) misunderstanding of legal principles

피고인 및 피고인의 변호인은 가사 피고인이 공무원에 청탁한다는 명목으로 오C으로부터 7,300만 원을 받았다고 하더라도 이는 피고인이 2008년 5월경부터 ◆의 대표이사로서 일하면서 자기의 사건 또는 사무에 관하여 수수한 것이므로 변호사법위반죄가 성립하지 않는데도 원심이 이를 간과함으로써 공무원이 취급하는 사건 또는 사무에 관한 법리를 오해하여 판결에 영향을 미친 위법이 있다고 주장한다.

(B) Violation of the Attorney-at-Law Act in December 2008

1) misunderstanding of facts

The defendant and the defendant's defense counsel did not receive KRW 10 million from Kim C1 on December 26, 2008, regardless of the title, regardless of the fact that the defendant received KRW 10 million from Kim C1 on December 26, 2008, and ② since the defendant received KRW 2 million from Kim C1 on December 20, 2008, he did not receive money from public officials under the pretext of soliciting public officials, the court below argues that there was an error of law by misunderstanding facts and affecting the conclusion of the judgment.

2) misunderstanding of legal principles

The defendant and the defendant's defense counsel ① delivered 30 million won out of 30 million won among the 30 million won, which the defendant received from Kim C1 on December 1, 2008 as a solicitation title, under the pretext of game expenses, to Kim C1, and this does not constitute a public official's solicitation. ② Since Kim C1, who obtained a gas filling station building permit, he would be entrusted to the defendant with the construction date, the defendant received money for the case or affairs related to the building permit. ③ The defendant received and kept money from Kim C1 to deliver it to the public official in charge of the building permit of gas filling stations, and ③ the defendant did not have the intention to obtain money, so the court below erred by misapprehending the legal principles on the case or affairs handled by the public official, which affected the conclusion of the judgment.

(2) As to the act of aiding and abetting an offender among the cases No. 2010849

(A) misunderstanding of facts

The defendant's defense counsel asserts that the court below erred by misunderstanding facts and adversely affecting the conclusion of the judgment even though Park C2 stated that he was the actual president of the gameland and did not actively deception against the investigation agency to escape the defendant.

(B) misunderstanding of legal principles

The defendant's defense counsel stated that the court below erred by misapprehending the legal principles on aiding and abetting a criminal suspect, thereby adversely affecting the conclusion of the judgment, even though Park C2 made a statement as the actual president at the time of investigation, even though the police officer already knew the fact that the defendant was the actual president of the Gein Gameland, while the prosecutor had the commissioner of the district police agency Lee Do and the defendant as a bribe case.

B. Defendant A asserts that each of the Defendants and the prosecutor’s arguments on unfair sentencing is unfair on the grounds that each sentence of the lower court (one year and six months of imprisonment: imprisonment with prison labor; six months of imprisonment with prison labor); the prosecutor asserts that the sentence of the first instance judgment (one year and six months of imprisonment with prison labor) is too unreasonable, and Defendant A1 asserts that the sentence of the lower court (fine 3,000,000) is too unreasonable.

2. Determination:

A. Ex officio determination

Before the judgment on the assertion of unfair sentencing by Defendant A and the prosecutor, the judgment of the court below on the appeal by Defendant A and each of the appellate cases by the court below against Defendant A was decided to jointly deliberate on the case. The first and second judgments by the court below on Defendant A on the relation of concurrent crimes under the former part of Article 37 of the Criminal Act with regard to the relation of concurrent crimes under Article 38(1) of the Criminal Act, shall be sentenced to a single sentence within the scope of the term of punishment increased by concurrent crimes under Article 38(1) of the Criminal Act. Therefore, the judgment of the court below

However, notwithstanding the above reasons for ex officio reversal, Defendant’s assertion of misunderstanding of facts and misapprehension of legal principles is still subject to the judgment of this court. Thus, the following can be seen as follows.

B. Judgment on the mistake of facts and misapprehension of legal principles by Defendant A’s competent authority

(1) As to the violation of each Attorney-at-Law among the cases No. 2009Do4069

(A) Violation of the Attorney-at-Law Act in July 2008

1) Judgment on the assertion of mistake of facts

원심이 적법하게 채택하여 조사한 증거들 및 이 법원에서 증거조사한 항소심 증인 황D1의 법정진술을 종합하면 인정되는 다음과 같은 사정 즉, 오C을 제외한 나머지 ◆의 의판매상들(속칭 '딜러'라고 한다)은 피고인이 •의 대표이사로 일한 사실은 알고 있었으나, 정확히 피고인이 하는 업무가 무엇인지, 급여는 얼마를 받는지 등에 대하여는 모르고 있었던 점, 피고인이 의 판매상들에게 자신이 경찰 간부들을 많이 알고 있다고 이야기한 점, ◆에서 자금을 담당하였던 오C이 피고인에게 7,300만 원을 지급하느라 판매상들에게는 판매 수당을 지급하지 못하였던 점, 2008. 7. 18. 게임물등급위원회가에서 판매한 골드스피어 게임기에 대한 심의취소결정을 한 점, 심의취소결정 전후로 피고인이 오C으로부터 5차례에 걸쳐 7,300만 원을 수수한 점, 피고인은 ◆의 동업자도 아니면서 대표이사로 일한지 불과 한 두 달만에 오C으로부터 7,300만 원이라는 거액을 교부받은 점, 이 사건 당시 ◆은 전국 각지에 있는 오락실에 판매하였던 골드스피어 게임기의 단속으로 오락실 업주들로부터 심한 항의를 받고 수금을 제대로 하지 못하여 운영이 어려웠던 점 등에 비추어 보면, 피고인이 원심 판시 기재와 같이 오C에게 친하게 지내는 경찰 간부들을 통하여 골드스피어 게임기의 단속과 관련한 사건을 무마시켜 주고, 게임물등급위원회 직원에게 이야기하여 심의 취소를 막아주겠다고 말하면서 공무원이 취급하는 사무에 관하여 청탁을 한다는 명목으로 7,300만 원을 수수한 사실을 충분히 인정할 수 있으므로 피고인 및 피고인의 변호인의 이 부분 사실오인 주장은 이유 없다.

2) Judgment on the misapprehension of legal principles

It is reasonable to interpret that the case or affairs dealt with by a public official under Article 90 subparagraph 1 of the former Attorney-at-Law Act (amended by Act No. 5177 of Dec. 12, 1996, hereinafter the following) refer to all the cases or affairs of a person other than the person himself/herself. Thus, if the appearance of an employee belonging to an organization is merely a means of facilitating solicitation of a public official in charge for the purpose of dealing with the case or affairs related to the organization, the case or affairs of an organization dealt with by a public official with such appearance shall not be deemed to constitute an offender's case or affairs (see Supreme Court Decision 2005Do5567 of Nov. 24, 2006).

앞서 본 사실관계[나. (1) (가) 1)] 및 기록에 의하면 인정되는 다음과 같은 사정 즉, 피고인이 2008년 6월경 ◆으로부터 구입한 골드스피어 게임기를 반품하러 ◆ 사무실에 가기 전까지는 ◆ 판매상인 오C 등을 알지 못했던 점, 피고인이 오C에게 자신이 경찰 간부들을 많이 알고 있다고 말하자 오C이 피고인에게 골드스피어 게임기의 심의 취소 문제를 해결하여 달라고 하면서 의 대표이사 자리를 제안한 것으로 보이는 점, 피고인이 ◆의 통상적인 운영에는 전혀 관여하지 않았고, 대표이사로 취임한 이후에는 ◆이 골드스피어 게임기의 심의 취소 문제로 인하여 정상적으로 운영되지 않은 점 등에 비추어 보면, 피고인이 ◆의 대표이사로서의 외관을 갖춘 것은 과 관련된 사무의 처리를 위하여 담당공무원에게 청탁하는 행위를 용이하게 하기 위한 수단에 불과하므로, 피고인이 처리하는 ◆의 사무를 피고인 자신의 사무에 해당한다고 볼 수는 없다. 그러므로 피고인 및 피고인의 변호인의 이 부분 법리오해 주장도 이유 없다.

(B) Violation of the Attorney-at-Law Act in December 2008

1) Judgment on the assertion of mistake of facts

Comprehensively taking account of the evidence duly adopted and examined by the court below, it is sufficiently recognized that the defendant was given KRW 10 million on December 1, 2008, and KRW 2 million on December 20, 2008, as stated in the judgment of the court below, to the name of solicitation for the permission of gas filling from Kim C1, as shown in the judgment of the court below, and as such, the defendant's and the defendant's defense counsel's allegation on this part is without merit.

2) Judgment on the misapprehension of legal principles

① As to the assertion that it is not a receipt of KRW 3 million under the pretext of solicitation as a public official, even if the Defendant received KRW 30 million under the pretext of solicitation from Kim C1 on December 1, 2008, and then delivered KRW 3 million to KimC under the pretext of game expenses, this does not affect the establishment of the violation of the Attorney-at-Law Act, as long as the Defendant received money under the pretext of solicitation from Kim C1, since it is merely a circumstance after receiving the money under the pretext of solicitation, it does not affect the establishment of the violation of the Attorney-at-Law Act. Therefore, the argument of misapprehension of the legal principles by the Defendant and the Defendant’s attorney is

② Next, as to the assertion that the Defendant received money in relation to his own case or affairs, which is a building permit related to his own building work, even though the health department and KimC1 promised to leave the date of the construction of the gas filling station to the Defendant, it cannot be deemed that the Defendant’s business was the Defendant’s business since the date of the construction after the permission is entirely separate from the gas filling station construction permit and the construction after the permission. Therefore, there is no reason to believe that this part of the law

③ Finally, we examine the argument that the defendant received and kept money from Kim C1 to deliver it to the public official, and that he did not have any intention to obtain money.

Unlike the case where a public official receives money and valuables to be provided to a public official who is the other party to a request for a case or affairs handled by a public official and simply delivers them to such public official, the crime of violation of Article 90 subparag. 1 of the former Attorney-at-Law Act is established as soon, and in such a case, there is no room for establishing the crime of delivering the trusted articles under Article 133(2) of the Criminal Act (see Supreme Court Decision 86Do436, Mar. 25, 1986).

기록에 의하면, 피고인은 김C1에게 전 지방경찰청장 이D과 절친한 사이이고, 이D 이 ♥시장인 오D2와 절친한 사이이니, 그들을 통해서 담당공무원에게 로비하여 가스충 전소 허가를 받을 수 있도록 해주겠다는 취지로 말하여 김C1로부터 로비자금 명목으로 6,200만 원을 교부받은 사실, 피고인이 6,200만 원 중 5,700만 원을 현금 또는 수표로 받아 피고인의 차명계좌인 한D 명의의 계좌로 입금한 사실을 인정할 수 있다. 인정 사실을 앞서 본 법리에 비추어 보면, 피고인이 김C1로부터 6,200만 원을 수수한 행위는 단지 담당공무원에게 전달하는 명목이 아니라 청탁에 관하여 포괄적인 부탁을 받고 피고인이 취득할 의사로 수수한 것으로 평가할 수 있으므로, 피고인 및 피고인의 변호인의 이 부분 법리오해 주장도 이유 없다.

(2) As to the act of aiding and abetting an offender among the cases No. 2010849

(A) Determination of misunderstanding of facts

Comprehensively taking account of the evidence duly admitted and examined by the court below, in light of the following circumstances and the fact that Park C2 made a false statement to the effect that he/she was the president of the gameland and was engaged in money exchange activities, the actual president of the police according to the direction of the defendant, and presented the details of the game room operation, the details of the game machine purchase, the details of the preparation of the deposit contract, and the payment receipt of public charges and the deposit contract prepared in the name of Park C2 as stated in the judgment of the court below, etc., it can be sufficiently recognized that the defendant instigated Park C2 as stated in the judgment of the court below, and caused Park C2 to escape by actively deceiving the investigation agency to the defendant, and therefore,

(B) Judgment on the misapprehension of legal principles

The crime of attempted criminal under Article 151 of the Criminal Act refers to an act which makes it difficult or impossible to act as a criminal justice such as the investigation, trial, and execution of a sentence against a criminal by a means other than concealment of the criminal. There is no restriction on the method, and the above crime does not require that it would result in impeding the actual criminal justice as a dangerous offender (see, e.g., Supreme Court Decisions 93Do3080, Mar. 3, 1995; 200Do4078, Nov. 24, 2000).

As seen earlier facts [b.(2)(a)], inasmuch as Park C2, as seen earlier, actively stated as if it was the actual president of the Gameland at the police investigation stage, and presented false data to the investigation agency, and thereby, committed an act of attempting to escape a criminal who makes it difficult or impossible to arrest the Defendant, the actual business owner of the Gold Gameland, the risk of interference with the criminal justice function has already occurred, and as such, even if the prosecutor knew, as the defendant's defense counsel, that it was not Park C2, but that it was the Defendant, the establishment of the crime of attempting to escape a criminal.

shall not be required.

Therefore, the defendant's defense counsel's assertion of legal principles is without merit.

B. Determination on Defendant 1’s assertion of unreasonable sentencing

In light of the facts charged in this case, there are favorable circumstances such as the defendant's confession of his mistake in depth, the fact that there is no criminal conviction other than once a suspended sentence of this case, two times a fine, and the period of actual money exchange business in the Giet Gameland is relatively short to the extent of one week, etc. However, the crime in this case is not easy in that the defendant, in collusion with co-defendant A, etc., led the employees who employ the gift acquired from the game in the game in exchange or exchange to exchange in order to exchange the gift acquired from the game in the game, thereby promoting speculation. In full view of all the circumstances such as the nature and contents of the crime in this case, the circumstances after the crime in this case, the defendant's age, character and conduct, family relation, occupation, and criminal power, etc., it cannot be said that the sentence of the court below is too unreasonable, and the defendant's assertion is without merit.

3. Conclusion

Therefore, without examining the judgment on the allegation of unfair sentencing by Defendant A and the prosecutor, the part concerning Defendant A among the judgment of the court of first instance and the judgment of the court of second instance under Article 364(2) and (6) of the Criminal Procedure Act are all reversed, and it is again decided as follows after the pleading. The instant appeal by Defendant A1 is without merit, and it is dismissed under Article 364(4) of the Criminal Procedure Act.

Criminal facts and summary of evidence

The summary of the facts constituting an offense and evidence recognized by this court is all identical to the facts stated in the corresponding column of the part against Defendant AuthorizedA among the judgment of the court of first instance and the judgment of the court of second instance. Therefore, they are cited by Article 369 of the Criminal Procedure Act.

Application of Statutes

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

Article 111 (1) of the Attorney-at-Law Act (the fact of receiving and receiving the money under the name of trust, each choice of imprisonment), Article 257 (1) of the Criminal Act (the fact of causing injury), Article 44 (1) 2 and Article 32 (1) 7 of the Promotion of Game Industry Act, Article 30 of the Criminal Act (the fact of making exchange or exchange mediation, the choice of imprisonment), Articles 151 (1) and 31 (1) of the Criminal Act (the fact of receiving and receiving the money under the name of trust, the fact of receiving the money under the name of trust, the

1. Aggravation for concurrent crimes;

The former part of Article 37, Article 38 (1) 2, and Article 50 of the Criminal Act (Concurrent Crimes Concerning Bodily Injury in Punishment)

1. Confiscation;

Article 44(2) of the Game Industry Promotion Act

1. Additional collection:

Article 116 of the Attorney-at-Law Act

The reason for sentencing is 15 times or more that the defendant has been punished for a crime of this kind, but the defendant agreed to immediately return the money that he has received as a solicitation title to Kim C1, the defendant has reached an agreement with KimD3. The crime of violation of the Game Industry Promotion Act in each of the crimes in this case was committed by the defendant with the permission of the relevant government office in operating the game site by using the game products rated by the relevant government office and mediating the exchange or exchange of free gifts acquired by the customers. The crime of aiding and abetting the offender was already known by the prosecution that the defendant is the actual owner of the gameland through internal investigation, and thus the risk of undermining the criminal justice function is somewhat reduced. The defendant has been detained for more than one year, which is favorable to the defendant, such as the fact that the health of the defendant has significantly deteriorated, and there is no fixed time for the defendant to waive or dispute about the crime, and the part of the crime committed in violation of the Attorney-at-Law Act in each of the crimes in this case was committed in violation of the law in each of the judgment below.

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

The presiding judge, judge and senior judge;

Judge Lee Dong-dong

Judges Shin Jae-won