Defendant 1 and one other

Defendants

Kim Jong-mun

Law Firm Barun, Attorneys Signature-soo et al.

Suwon District Court Decision 2010Gohap235 Decided September 29, 2010

All appeals by the Defendants are dismissed.

1. Summary of grounds for appeal;

A. misunderstanding of facts and misapprehension of legal principles

Defendant 2’s delivery of KRW 54 million to Defendant 1 in return for Defendant 1’s offer of solicitation to Nonindicted Co. 1 in order for Defendant 2 to receive a subcontract for the extension of the Home Plus datum constructed by Nonindicted Co. 1. However, it cannot be recognized that Defendant 2 received KRW 54 million in relation to duties in bribery even if the Defendants received KRW 54 million in relation to the selection of the subcontracted construction of the Home Plus datum, since the said extension works ordered by Nonindicted Co. 2 and the construction works executed by Nonindicted Co. 1 are merely the business of Nonindicted Co. 1 and the selection of the subcontractor is irrelevant to the duties of Defendant 1, which is the head of the Suwon City Urban Planning Bureau of Suwon City.

On the other hand, since Defendant 1 voluntarily surrenders himself to the investigative agency, the lower court, as a matter of course, failed to reduce the number of self-denunciation.

B. Unreasonable sentencing

The punishment determined by the court below against the Defendants (Defendant 1: 3 years and 6 months of imprisonment, Defendant 2: Imprisonment with prison labor for October, 2 years of suspended execution, community service for 80 hours) is too unreasonable.

2. Judgment on the assertion that the duty relationship of the Defendants cannot be recognized

(a) Facts of recognition;

According to the evidence duly admitted and examined by the court below, the following facts can be acknowledged.

(1) Defendant 1 was in office as the head of Suwon City Urban Planning Bureau from February 25, 2004 to December 6, 2005, and took overall control of the affairs of the urban planning station by assisting the ○○ City. Defendant 1 had urban planning department, land information department, urban landscape department, facility construction department, and construction business office under the above urban planning station.

(2) From May 2004, Suwon City had a non-indicted corporation 1 corporation as the contractor and carried out a new construction work of the Kuan-gu Office. The construction work of the Kuan-gu Office was managed and supervised through the construction business office affiliated with the Suwon-si Office.

(3) The Nonindicted Co. 5, who was operated by Defendant 2, commenced the construction of the ground destruction from Nonindicted Co. 1 to the construction of the building site in the Yeongdeungpo-gu Office. On May 22, 2004, in large amount of buried wastes were discovered at the underground site of the construction site, and Nonindicted Co. 1, who is the contractor, requested the change of the design to the effect that the construction cost would be increased at the time of Suwon on July 2004.

(4) On August 30, 2004, Suwon-si refused the request by Nonindicted Co. 1 Company, stating that “The construction work of the Yeongdeungpo-gu Office is not designed by the project owner, but is carried out in the way of Turn-Kyki, which was designed by the project owner. Thus, the project owner, who is the project owner, refused the request on the ground that there was no responsibility for the design at the time of Suwon, and there was no occurrence of landfill wastes, thereby undermining the design and increasing the construction cost accordingly.”

(5) On October 11, 2004, Nonindicted Co. 1 filed a civil petition with the Board of Audit and Inspection. On February 22, 2005, the Board of Audit and Inspection decided on Apr. 21, 2005, “After re-examination of the results of a field investigation conducted by Kui Si and Si Corporation, it shall determine the scope of design modification (amount of increase) through a separate consultation process within the extent not exceeding the actual cost for disposal of illegal wastes, and shall notify the Board of Audit and Inspection of the results thereafter.”

(6) On May 25, 2005, Nonindicted Co. 1 submitted a written request for design change (amount of increase) on the grounds of the above reply of the Board of Audit and Inspection at Suwon, and Suwon City paid KRW 900 million increased at that time to Nonindicted Co. 1, a week 4), and Nonindicted Co. 1 paid KRW 550 million out of KRW 90 million on June 27, 2005 to Nonindicted Co. 5).

(7) In order to modify designs according to the contents of the reply of the Board of Audit and Inspection by the Suwon City, the consent of the City Council and the approval of the Mayor after determining the scope, timing, etc. of the design change and increase in the construction amount after consultation with the relevant department. During that process, Nonindicted 3, a director at the site of the new construction site of the Korea Post, found Defendant 1 and 6).

(8) On the other hand, Nonindicted Co. 2 obtained permission from the ○○ mayor on June 8, 2005 for the Home Plus datum extension work, and carried out construction work from July 1, 2005, with regard to Nonindicted Co. 1 as the contractor, with regard to the Home Plus datum extension work.

(9) Defendant 2 asked Nonindicted Co. 4 corporation, which he operated, to obtain a subcontract for the extension of the Homeplos datum from Nonindicted Co. 1, to Nonindicted Co. 3, who was in the position of the head of the said construction site, but rejected it. On April 2005, Defendant 1 asked Nonindicted Co. 4 to find out the cost and to allow Nonindicted Co. 4 to participate in the said construction. On May 2005, Defendant 1 sent this content to Nonindicted Co. 3 at the time of visiting the site of the construction site of the Presidentan-gu office.

(10) Nonindicted 3 reported to Nonindicted Co. 1 that “A request for a free contract was made to allow Nonindicted Co. 4 to participate in the Homeplus Extension Work in Kui-si,” and on June 2005, Nonindicted Co. 4 subcontracted the steel-frame construction work from Nonindicted Co. 1 to July 1, 2005, and began construction work from July 1, 2005.

(11) On the other hand, the construction work of the ○○ Government was completed on December 2005, and the expansion work of the Home Plus datum was completed on November 29, 2005, and obtained approval for use from the ○ Government.

B. Determination

The crime of acceptance of bribe is established when a public official receives a bribe "in relation to his duties". The term "duty" here includes not only cases directly related to the duties belonging to his authority, but also cases where a public official commits an act which does not fall under the official authority of a public official objectively, in relation to his official authority, and also cases where he commits an unlawful, unjustifiable, or prohibited act by abusing his authority (in the absence of such interpretation, it would be punishable as the crime of acceptance of bribe in cases where a public official receives money in relation to an act within his authority, but also it would result in not being punished as the crime of acceptance of bribe in cases where he uses his position or abused his authority in relation to his official authority, and receives money and valuables, and it would not be punishable as

Defendant 1, as the director of Suwon City Planning Bureau, has influence on Nonindicted Co. 1 in relation to the above new construction work of the Ministry of Home Affairs as the client’s specific authority to manage and supervise the construction work of the Ministry of Home Affairs. In relation to the construction work of the Ministry of Home Affairs adjacent to the Ministry of Home Affairs, there is influence on the general authority to manage and supervise the construction site in accordance with the Building Act and other relevant Acts and subordinate statutes, such as fair management, safety management, inspection of construction conditions, and handling of civil petitions, etc. as the owner of the building permit and the right to use the building site. ② Defendant 2 asked Nonindicted Co. 1 to select Nonindicted Co. 4 as the subcontractor of the Ministry of Home Affairs by taking advantage of such official authority and authority, and made a solicitation that Nonindicted Co. 1 would be entitled to the above new construction work of the Ministry of Home Affairs’s new construction work of the Ministry of Home Affairs, and ③ Defendant 1 would also be entitled to the advance construction work of the Ministry of Home Affairs and its new construction work of the Ministry of Home Affairs.

Therefore, the judgment of the court below to the same purport is just, and there is no error of misconception of facts or misunderstanding of legal principles as pointed out by the defendants.

3. Determination on Defendant 1’s assertion of mitigation of self-denunciation

The term "self-denunciation" refers to an expression of intent to voluntarily report a crime to a government agency responsible for the investigation and to seek the relevant disposition, and it is only a confession that makes a statement on the crime in response to an official questioning or investigation by an investigation agency (see Supreme Court Decision 2006Do4883, Sept. 22, 2006, etc.). According to the records, in the course of investigating a crime of occupational embezzlement against Defendant 2, the investigation into Defendant 1 was initiated as the suspicion of acceptance of bribe against Defendant 1 was discovered, and Defendant 1 was summoned to the prosecution at the time of the investigation, and then led Defendant 1 to the confession of the facts of the bribery after being summoned to the prosecution, and it cannot be deemed that Defendant 1 voluntarily surrenders to the prosecution at the time of the investigation, even if Defendant 1 could be deemed that Defendant 1 voluntarily surrenders to the police, the court can reduce the punishment only at its discretion, and the court did not render a decision on the reduction of the number of self-denunciation against Defendant 2, 2014.

Therefore, Defendant 1’s ground of appeal on this part is without merit.

4. Determination on the Defendants’ assertion of unfair sentencing

A. Defendant 1

Defendant 1 does not actively demand money, and the fact that Defendant 1 was sentenced to a fine of KRW 3 million due to a violation of the Road Traffic Act in 2003, and there is no previous conviction, etc. shall be considered as favorable circumstances.

However, Defendant 1’s crime of this case is an act that is not actively permitted by taking advantage of his position or abuse of official authority, and receives money in return for such an act, which is highly likely to be subject to criticism, and the amount of bribe received is higher than 54 million won, and the crime of violation of the Act on the Aggravated Punishment, etc. of Specific Crimes of this case (Bribery) is committed when considering the various sentencing conditions indicated in the argument of this case, such as the fact that the lower limit of the statutory penalty is less than 7 years of imprisonment and that it is legally impossible to sentence the lowest sentence that the lower court may pronounce and lower than 7 years of imprisonment, and that it is unreasonable to determine that the punishment prescribed by the lower court against Defendant 1 is within the proper sentencing range, and that it is too unreasonable to deem that the punishment imposed by Defendant 1 is within the proper sentencing range.

Therefore, Defendant 1’s assertion of unreasonable sentencing is without merit.

B. Defendant 2

The victim of the crime of embezzlement, Nonindicted Co. 5, the victim of the crime of embezzlement, was in fact one of Defendant 2 at the time, and Defendant 2 deposited the amount of not less than 39,035,350 won of embezzlement against Nonindicted Co. 5 to Nonindicted Co. 5, and the amount of not less than 39,035,350 won to Nonindicted Co. 5, which is considered as favorable circumstances.

However, Defendant 2 asked Defendant 1, who is a public official, to perform an act that is not allowed as a public official in relation to the order of subcontracting construction works for the Home Plus datum extension work, and offered a bribe of KRW 54 million in return, and Defendant 2 offered a bribe of KRW 54 million in return for Defendant 2’s demand for subcontracting to the public official first and offered a bribe to the public official, etc. under the unfavorable circumstances.

Considering these circumstances and the various sentencing conditions shown in the instant pleadings, the lower court’s judgment on Defendant 2 is deemed to be within the reasonable scope of sentencing, and it is not deemed unfair because it is too unreasonable.

Therefore, Defendant 2’s assertion of unreasonable sentencing is without merit.

5. Conclusion

Therefore, the defendants' appeal is without merit, and all of them are dismissed in accordance with Article 364 (4) of the Criminal Procedure Act. It is so decided as per Disposition.

Judges Kim Chang-suk (Presiding Judge)

1) The supervisor selected at Suwon City directly manages and supervises the construction site of the construction site of the Yeongdeungpo-gu Office, and the construction business office affiliated with the Urban Planning Bureau has been subject to on-site management supervision in the form of reporting it to the Urban Planning Bureau after receiving a report from the supervisor (a investigative record 4647 pages).

Note 2) 4663 pages of investigation records

Note 3) 4665 pages of investigation records

Note 4) Investigation Records 2599 pages

Note 5) 448 pages of investigation records

Note 6) Defendant 1 stated in the Prosecutorial Office that “Nonindicted 3 found the lower amount and there was a change in the construction of a new construction project in the Speakerial Office, and there was a few time-limits on the investigation records.”

7) Where the owner of a building who has obtained a building permit intends to start construction works, he/she shall file a report on the commencement of construction works with the permitting authority for specific matters [Article 16(1) of the Building Act (wholly amended by Act No. 8974, Mar. 21, 2008; hereinafter the same shall apply], even where the owner intends to use the completed building, he/she shall obtain approval for use from the permitting authority, along with a specific document (Article 18(1) of the Building Act). If the owner considers that the construction site is neglected and thus undermine the urban landscape and endangers safety, he/she may order the person who has obtained the building to improve the aesthetic view and safety of the construction site (Article 8-3(5) of the Building Act). Meanwhile, the construction supervisor may, in conducting the construction supervision, if he/she finds any violation of the provisions of the Building Act, an order or disposition under the Building Act, or if the construction executor fails to perform construction works in conformity with the design documents, request the permitting authority to suspend construction works or execute construction permission in writing.

(8) On May 2005, at the time of solicitation to Nonindicted Co. 4, 2005, Defendant 1 made it possible for Nonindicted Co. 4 to receive a subcontract for the extension of the Homeplos datum, and around April 21, 2005, at the time of solicitation to Nonindicted Co. 1, Defendant 1 had to consult on the amount of the design change (amount of increase) caused by landfill wastes in relation to the construction of the Kuan-gu Office and to receive the increased construction cost in consultation with the Board of Audit and Inspection on April 21, 2005.

9) Nonindicted 3 stated in the prosecutorial office that “If he did not make a request to the head office of Nonindicted Co. 1 upon Defendant 1’s request, Nonindicted Co. 4 could not be selected as a subcontractor (this investigation record 4653 pages).”