[1] The case holding that the act of purchasing real estate shares in the name of another person using confidential information about the cancellation of a development restriction zone, which the defendant, a local government head of a public-private partnership, learned while performing his/her duties, constitutes "acquisition of economic benefits by using confidential information that public officials learned while performing their duties" under Article 50 (1)

[2] The case affirming the judgment of the court below which additionally collected the amount equivalent to the gains acquired by the above co-owner through resale of the above real estate shares from the defendant, on the ground that the defendant acquired the expected gains at the same time as the above share acquisition, even if the defendant transferred the above real estate shares to another co-owner after the purchase of the above real estate shares

[1] The case holding that the act of purchasing real estate shares in the name of another person using confidential information about the cancellation of a development restriction zone, which the defendant, a local government head, learned while performing his/her duties, constitutes "acquisition of economic benefits by using confidential information learned while performing his/her duties" under Article 50 (1) of the Prevention of Corruption Act

[2] The case affirming the judgment of the court below which additionally collected the amount equivalent to the gains acquired by the above co-owner through resale of the above real estate shares from the defendant, on the ground that the defendant acquired the expected future profits at the same time as the above share acquisition, even though the defendant transferred the above real estate shares to another co-owner after purchasing the above real estate shares

[1] Article 50(1) of the Anti-Corruption Act / [2] Article 50(1) and (3) of the Anti-Corruption Act

Defendant

Both parties

Maximum Republic of Korea

Attorney Kim Jae-hoon

Daegu District Court Decision 2004Gohap7978, 8090 Decided September 30, 2005

1. Each appeal by the defendant and prosecutor is dismissed.

2. Of the criminal facts of the judgment below in Article 3 (1) 3 (a) of the criminal facts of the judgment below, the "share interest in the land of this case equivalent to KRW 1,596,00,000 in the market price of KRW 348,40,000 [1,596,000,000--89,2000) x 1/2]" shall be corrected to the "interest interest expected to be realized by the rapid increase of future land prices by completing the registration of ownership transfer in the name of the defendant on July 9, 200."

1. Summary of grounds for appeal;

A. Defendant

In light of the fact that the Defendant committed a violation of the Act on the Registration of Real Estate under Actual Titleholder’s Name, and that the Defendant did not actively purchase the shares of 1/2 of the instant land (hereinafter “instant shares”), but was recommended by the seller to purchase the instant shares over several occasions, and that the Defendant purchased the instant shares for the purpose of the interest of residents (military name omitted), and that the Defendant did not obtain any benefit from the purchase of the instant shares, and that he made great efforts for the development of (military name omitted) while in office as the number of (military name omitted) trees, the sentence of the lower judgment is too unreasonable.

(b) Swords;

In light of the following circumstances: (a) the Defendant purchased the instant shares for the purpose of speculation using confidential information known to him in the course of performing his duties; (b) the resale gains earned from the instant crime are KRW 700 million due to the commission of the instant crime; (c) the Defendant, in the investigative agency and the court below, denied the crime of violating the Anti-Corruption Act; and (d) there is a need to strictize it in order to secure the integrity of public officials in performing their duties in order to ensure the integrity in performing their duties.

2. Judgment of party members

A. As to the assertion of unfair sentencing by the defendant and prosecutor

① Although the Defendant, who is in the position of the head of a public-private partnership head, has been in the position of the head of a public-private partnership head, was in the position of the head of a Gun to expect a rapid increase in the land price and purchase the shares of this case under another person’s name by using confidential information about the cancellation of a development-restricted zone that he/she has become aware of while performing his/her duties, the crime of this case which greatly damages the public official’s trust is a grave interest that must be corrected in our society with the aim of taking a weak view of advanced countries through the construction of an clean public-private partnership society, since the commencement of an investigation into the crime of violation of the Anti-Corruption Act, and since the commencement of an investigation into the crime of this case, there is a great financial interest that the Defendant acquired from the crime of this case, and thus, it is very significant that the Defendant would have contributed to the development of a region and the welfare of residents, and it is too unreasonable for the Defendant to pay the amount of the shares of this case to another 30 million won after the Defendant’s purchase of this case’s share.

B. As to the defendant's assertion of mistake of facts and misapprehension of legal principles

Since the defendant, after having made an argument of mistake and misunderstanding of legal principles in the statement of grounds for appeal, has withdrawn it in the trial court, but he/she stated that he/she wishes to make an ex officio decision on the above grounds for appeal.

(1) Whether the defendant used the confidential information learned while performing his/her duties

The Defendant asserts that information on the cancellation of development restriction zones is already disclosed prior to the purchase of the instant shares by the media, etc., and thus does not constitute secrets as referred to in Article 50 of the Anti-Corruption Act, and that the Defendant does not use the said information in purchasing the instant shares.

(4) In light of the fact that the Defendant’s new land was located in the development restriction zone and the new land was located in the name of 00,000,000,000 won, and the new land was located in the name of 0,000,000,000 won, and the new land was located in 0,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,00,00,000,000,00,000,00,000,00,00,00,00,00,00.

(2) Whether the defendant acquired financial benefits and the value of additional collection

The Defendant cannot be deemed to have obtained a profit equivalent to the marginal profit from the market price since he purchased the instant land by paying the purchase price in accordance with the market price as at the time of the purchase. Moreover, the Defendant’s purchase of the instant land by investing KRW 450 million with the purchase fund of the instant land, but did not participate in the resale, etc. of the instant land on or around October 2003, after receiving the refund of the said investment money. Since the Defendant et al. paid KRW 690 million to the seller of the instant land, the Defendant actually did not acquire any pecuniary profit from the purchase and resale of the instant land, and therefore, it is unlawful for the Defendant to additionally collect KRW 1/2,340,840,000,000 from the lower court, which is 1/2,000 of the resale marginal profit of the instant land.

In light of the above legal principles, since the defendant purchased the shares of this case and then transferred the shares of this case to another co-owner, which is KRW 450,000,000,000, which is equivalent to the price of this case, and the defendant acquired profits from the resale of the land of this case to a third party, and even if the above defendant paid almost all of such profits to the non-indicted 2, it is clear that the defendant acquired the shares of this case by using confidential information about the cancellation of development restriction zones which he acquired as a public official, and at the same time acquired "the expected profits which would have been realized by the rapid increase in land prices". However, the above profits are not yet realized at the time when the defendant acquired the shares of this case, but at least 00,000,000 won acquired the above shares of this case after the acquisition of the shares of this case to the above 40,000 won, and it is not at least 80,000,000,000 won after resale of the land of this case.

3. Conclusion

Therefore, since all appeals filed by the defendant and the prosecutor are without merit, they are dismissed under Article 364(4) of the Criminal Procedure Act. However, as seen above, the defendant merely acquired "the expected profit that will be realized by the rapid increase of the prices in the future with respect to 1/2 of the land among the land in this case" due to the violation of the Prevention of Corruption Act, and did not have already acquired the amount equivalent to 1/2 of the resale marginal profit at the time of acquisition, the judgment of the court below is erroneous as it is so decided as per Disposition by the assent of all participating Justices.

Judges Kim Chang-sub (Presiding Judge)