Defendant

Prosecutor

Park Jong-soo

Law Firm Squa Law Firm, Attorneys Song Han-sop et al.

Suwon District Court Decision 2004Gohap118 delivered on June 1, 2005

The prosecutor's appeal is dismissed.

1. Summary of grounds for appeal;

A. On the violation of the Act on the Maintenance and Improvement of Urban Areas

Even according to the facts acknowledged by the court below, the defendant entered into a bathing purchase contract and a monetary loan contract without the resolution of the general meeting as the representative of the apartment reconstruction association (title omitted) or the association of apartment (hereinafter “association”) on July 8, 2003, which provides that the resolution of the general meeting of reconstruction partners (hereinafter “general meeting”) shall not be delegated to the board of representatives (hereinafter “the Do Government Act”) and after the enforcement date of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (hereinafter “the Do Government Act”), and on June 30, 2003, the board of representatives of the association of this case adopted a resolution to purchase bathing in 2.9 billion won on June 30, 2003, which is before the enforcement date of the Do Government Act. Thus, the defendant's act of purchasing bathing in excess of the above purchase price under the above monetary loan contract constitutes an indivisible contract without the resolution of the general meeting under the Do Government Act.

B. As to the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Misappropriation)

The issue of the burden of value-added tax on the provision of construction services by the reconstruction association and the contractor should be determined by the agreement under the construction contract. In this case, according to the project participation proposal and the bidding guidelines, in calculating the construction cost, the phrase “value-added tax separate” is stated in the case of the contract method as “value-added tax separate.” However, in the case of the contract method, there is no separate provision on the value-added tax in the case of the contract method. In the case of the contract method, there is no provision on “interest-free project expenses” instead of the item on the loan for the project expenses, there is no provision on “interest-free project expenses,” and there is no provision on “interest-free project expenses,” and in the case of the share method, there is no item on the loan for the contract method and interest-free project expenses, and the total construction expenses of the contract method and share-free project expenses are almost consistent. In light of the fact that the value-added tax on the provision of construction services are already included in the project expenses, the association implementing the reconstruction project by the method constitutes an additional provision of value-added 200 billion won.

C. Sub-committee

Nevertheless, the lower court found the Defendant not guilty of the entire facts charged of this case on the ground that the facts charged against the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Misappropriation) of this case, which is based on the premise of the above guidelines and proposal, cannot be deemed as having included the value-added tax on the provision of construction services of Samsung C&T, and thus, it cannot be deemed that the Defendant again passed a resolution of the general meeting pursuant to the Do Government Act for the conclusion of each of the above contracts merely because the execution of each of the above contracts was conducted by the resolution of the inaugural general meeting and the board of representatives prior to the enforcement of the Do Government Act. In addition, since the value-added tax

2. Summary of the facts charged in this case

The summary of the facts charged of this case is that the defendant, as the head of the association of this case, is in charge of overall business of the management of Samsung 2's employees and the conclusion of contracts, etc., and ① in collusion with the directors of the association of this case without the resolution of the general meeting of the association of this case. On July 8, 2003, the office of the association of this case, which is in Sungyang-gu, Sungyang-si (hereinafter omitted), purchased bathing baths owned by non-indicted 3 with the association of this case. The association of this case between Samsung 2 and Samsung 3, to acquire 3.64 billion won from Samsung 60 billion won from Samsung C&T, and the construction cost of Samsung 2, the association of this case to acquire 60 billion won from Samsung C&T as the whole construction cost of Samsung 2, the association of this case, including the value-added tax of this case, was to acquire 60 billion won from Samsung 300 billion won from Samsung C&T to the construction cost of the reconstruction project.

3. The defendant's lawsuit;

On the other hand, the defendant is suffering from this issue as follows.

A. As to the violation of the law of Domination

On November 3, 2002, the instant association made a resolution by presenting the “case of the consent for reconstruction and project implementation”, “case of the selection of a contractor and the conclusion of a contract,” and “case of the delegation of the board of representatives of the matters resolved at the general meeting,” as agenda items, and the Defendant concluded each of the above contracts following the resolution of the board of representatives of the instant association in accordance with the above resolution. In addition, even though each of the above contracts was concluded after July 1, 2003 when the Do Government Act was in force, it had already been adopted prior to the enforcement of the Do Government Act, and the Defendant concluded each of the above contracts with the general meeting or the board of representatives prior to the enforcement of the Do Government Act, and thus, it cannot be applied to the Defendant’s conclusion of each of the above contracts

B. As to occupational breach of trust

In the case of the share method, Samsung C&T, a contractor, is obligated to pay the value-added tax for the provision of construction services for apartment buildings, and the value-added tax for the project expenses does not include the value-added tax for the supply of the above construction services (and, in the case of the share method, the value-added tax for the project expenses is limited to the general sale of apartment buildings, unlike the contract method, in the case of the share method, the amount of value-added tax for the project expenses" means the amount of the paid value-added tax to be borne by the association of this case in connection with the general sale of apartment buildings. In the case of the share method, "value-added tax for the payment in kind in the partner's portion of the value-added tax for the portion of the newly built apartment for the supply of land by the association members does not incur any additional charges as value-added tax for the portion of the compensation for the newly built apartment as value-added tax for the portion of the purchase in lots."

Therefore, this part of the facts charged is based on the wrong fact that the value-added tax for the provision of construction services does not occur in the case of equity method, and the value-added tax among the business expenses includes the value-added tax for the provision of construction services.

4. The judgment of this Court

A. As to the violation of the law of Domination

(1) Facts of recognition

According to the evidence duly examined and adopted by the court below, the following facts are recognized:

(A) On August 30, 200, the sectional owners of apartment units in Seongdong-gu, Seongbuk-gu (hereinafter omitted), Sungyang-gu (hereinafter omitted) decided on August 30, 200 to promote the reconstruction of the above apartment, and accordingly, constituted (title omitted) apartment reconstruction promotion committee and promoted the reconstruction association establishment.

(B) Accordingly, on November 3, 2002, the association of this case was established by holding an inaugural general meeting of the association of this case. The above inaugural general meeting of the association of this case, "the rules of the association [Article 29 provides that the accounts of the association shall be from January 1 of each month (the authorization date) to the end of December] and operational rules of the association" (the agenda item 2), "the defendant shall be elected from the representative of the association of this case (the agenda item 3)" (the agenda item 3) and "the 8,689.7 square meters of the total floor area and 20,500 won (Additional tax) shall be the contract amount, and the contract amount shall be calculated as 79,057,300 won shall be the 14th anniversary of the project execution agreement of the association of this case and the 194th anniversary of the project execution agreement of the association (the 14th anniversary of the project execution agreement) and the 10th of the project execution agreement of the association of this case (the 2014th of each project execution agreement)".

(C) Meanwhile, Nonindicted 3, as the owner of a bath building and land in the above apartment building among three apartment buildings, did not consent to the reconstruction of the above apartment building, and the area of the land in the above bath building was 630 square meters out of the total site area of 1,620.7 square meters. Article 44-3(7) of the Housing Construction Promotion Act provides that in a case where owners of old and poor housing with several buildings in a housing complex intend to reconstruct, it is impossible to authorize the reconstruction association to authorize the reconstruction association if Nonindicted 3 did not consent to reconstruction, notwithstanding the provisions of Article 47(1) and (2) of the Act on the Ownership and Management of Aggregate Buildings, there were two-thirds or more of the sectional owners and voting rights of each building in the housing complex (the welfare facilities are deemed one building) and the resolution of not less than 4/5 of the entire sectional owners and voting rights in the housing complex.

(D) Around May 2003, the Defendant agreed to purchase bathing buildings and land in KRW 2 billion from Nonindicted 3. The instant association held a fifth council of representatives on May 20, 2003 and resolved to the effect that “Non-Indicted 3 purchases all the bathing buildings and land in KRW 2 billion, and the expenses shall be borrowed from the contractor.” However, the instant association failed to purchase bathing buildings and land in the wind requiring KRW 2.5 billion with the purchase price. The instant association held a board of representatives on June 25, 2003, and held a meeting of representatives and held that “The said association shall purchase bathing buildings and land in KRW 2.5 billion, and borrowed KRW 2.7 billion, including capital gains tax of KRW 2.5 billion, which may be additionally generated, from the contractor’s joint and several sureties.”

(E) However, Nonindicted 3 demanded the purchase price of KRW 3 billion at another time and did not enter into a sales contract. Accordingly, on June 28, 2003, the instant association held a board of representatives and discussed and rejected the agenda on the amount of KRW 3 billion. Since then, the Defendant agreed on Nonindicted 3 and the bathing sale price of KRW 2.9 billion. On June 30, 2003, the instant association held a board of representatives and resolved to the effect that “the purchase of bathings in KRW 2.9 billion.”

(F) Meanwhile, on June 10, 2003, the instant association filed an application for authorization to establish the instant association without Nonindicted 3’s consent to re-building, and on June 30, 2003, the Goyang market had obtained authorization to establish the instant association by mistake even though the instant association failed to meet the requirements for authorization to establish the association, and Nonindicted 3, who became aware of this fact, filed an objection to the said authorization to establish the instant association on July 3, 2003, and Nonindicted 5, a public official in charge, found that there was a problem in the authorization to establish the instant association, and provided that if the Defendant did not obtain the consent to re-building, the authorization to establish the instant association may be revoked. The instant association was enacted and promulgated on December 30, 200 and implemented on July 1, 2003, and thus, the reconstruction project was implemented again under the Act.

(G) After July 8, 2003, the Defendant as the representative of the instant association: ① between Nonindicted 3 and Nonindicted 3, “The instant association shall purchase bathing buildings and land from Nonindicted 3, but the down payment of KRW 1 billion out of the purchase price shall be made on the date of the contract; an intermediate payment of KRW 1 billion shall be paid on July 22, 2003; ② the remainder of KRW 900 million shall be paid on August 8, 2003; ② the instant association’s agreement between Samsung C&T with the terms and conditions that “the instant association shall take effect on the reconstruction project’s conclusion of the reconstruction project’s terms and conditions that “the instant association shall take effect on the housing purchase cost, KRW 2.9 billion from Samsung C&T; KRW 90 million,000,000,000; KRW 5.5 billion,000,0000,000,000,000,000,000).”

(h) On August 23, 2003, the Defendant held an extraordinary general meeting of the instant association and proposed “a quasi-party to purchase bathings” and “a quasi-party to conclude a provisional contract for construction works” to obtain a resolution for ratification of each of the above contracts from members, but failed to reach a quorum. In short, the instant association held a general meeting on May 22, 2004 and passed a resolution for ratification of the said bathing purchase agreement, monetary loan agreement, and construction works, respectively.

(2) Determination

Article 24(3) of the Do Government Act, which was enacted and promulgated on December 30, 202 and enforced on July 1, 2003, provides that "loan of funds, its method and interest rate, and repayment method (Article 24)" shall be subject to the resolution of the general meeting of the association, and Article 35 of the Enforcement Decree of the Do Government Act provides that "the selection and alteration of the executor (Article 6) shall not be made by the representatives' meeting," and each of the above matters shall not be made by the representatives' meeting on behalf of the executives of the association, without going through a resolution of the general meeting under Article 24 (3) of the Do Government Act, shall be limited to the above matters and shall be subject to criminal punishment for "the executives of the association who arbitrarily promote the business of each subparagraph of paragraph (3) of the same Article without going through a resolution of the general meeting under Article 24 of the Do Government Act." This provision also provides that "the head of the association shall be deemed to be in violation of the legislative purpose of the Do Government Act, ex officio, after the establishment of the general meeting.

(A) Contracts for the purchase of bath;

Article 24 (3) 5 of the Do Government Administration Act refers to a contract that continues to bear obligations over a period exceeding one fiscal year of a cooperative. Thus, if the validity of obligations is limited to that fiscal year and the repayment of obligations is completed within that fiscal year, a cooperative is able to enter into such a contract within budgetary limits and it is not necessary to obtain a resolution of a general meeting. According to the above facts, the cooperative of this case, upon obtaining authorization for establishment on June 30, 2003, falls under the period of 203 fiscal years from that date to December 31, 200 of the same fiscal year. Thus, as long as the contract for the purchase of bathing is concluded on July 8 of the same fiscal year with the agreement to pay the remaining amount to August 8 of the same fiscal year, the debt of the cooperative of this case under the above contract shall be completed within 2003 fiscal year, so the purchase contract does not fall under the "general meeting of union members as it does not fall under the terms of the Act on the Settlement of Public Bath."

Although the above bath purchase contract is decided at a general meeting, the defendant's act of entering into the above contract after the enforcement of the Do Government Act is merely an execution in accordance with the resolution of the inaugural general meeting of the board of representatives held before the enforcement of the Do Government Act (the agenda item No. 8). Thus, it is not necessary to obtain a new resolution of the general meeting after the enforcement of the Do Government Act. Thus, the conclusion of the above contract does not constitute a violation of the Do Government Act by arbitrarily promoting the defendant who is the head of the association without the general meeting's resolution.

(b) A monetary loan agreement

First of all, according to the above facts, it is clear that the defendant's act of entering into a contract to borrow this part of the loan with the public health room as to the expenses for purchasing bathings among the loan items under the above loan contract for consumption of loan amounting to KRW 3 billion (the sale price of KRW 2.9 billion + KRW 150 million at a tax rate) and according to the above facts, it is obvious that the act of the defendant's act of entering into a contract to borrow this part of the loan is executed in accordance with the resolution of the inaugural general meeting of the union of this case (the agenda item No. 8) prior to the enforcement of the law of Do administration. Accordingly, it is not necessary to obtain a new resolution of the general meeting after the enforcement of the law of Do administration.

Next, as seen earlier, with respect to the portion of KRW 90 million in operating expenses of the association, the general meeting of the association of this case decided to disburse approximately KRW 19 million per month as operating expenses of the association. The details of the "project expenses" under the construction cost contract with Samsung C&T, include the operating expenses of the association. The "requirements for proposing the project participation" submitted by Samsung C&T at the time of the selection of the contractor, also includes the 18 million operating expenses of the association of this case as subsidies to the association of this case. The above portion of the funds of KRW 2.4 billion which was decided to borrow from the Si Corporation at the time of the representatives' meeting of June 25, 2003 at KRW 2.5 billion in advance, which was anticipated to borrow from the Si Corporation at the time of the above representatives' meeting, and the above portion of the funds of KRW 2.5 billion in advance after the execution of the general meeting's loan agreement of KRW 90 million in consideration of the above portion of the funds of KRW 2.5 billion in advance the above execution of the general meeting's loan agreement.

Finally, as seen earlier, with respect to the other project cost of KRW 500,00 of the project cost, at the general meeting of the association of this case, at the stage of the committee meeting of this case, the design price contract and consulting service contract which the defendant had already concluded on behalf of the association of this case (the agenda item No. 6), and the payment to the other party to each of the above contracts at the time of the above general meeting's resolution would have been expected to have been able to depend on the amount borrowed from the outside until the time when the association of this case obtains the sales price revenue. The above construction cost included the design cost and consulting service cost in the above construction cost in the general meeting of this case's loan contract of this case's 500,00,000,000,000 won, which were already executed by the association of this case's 205,000,000 won and more than the above 50,000,000,000 won under the above monetary loan contract of this case.

Ultimately, any part of the above monetary loan contract is not recognized as a defect in violation of the law of the Do administration by arbitrarily promoting the defendant who is the president of the partnership without a resolution of the general meeting.

(C) Construction cost contract

According to the above facts, as long as it is obvious that the defendant decided to select Samsung C&T as the contractor at the inaugural general meeting of the association of this case before the enactment of the Do Government Act, even if the defendant entered into the above construction contract with Samsung C&T without the resolution of the board of representatives prior to the enforcement of the Do Government Act, it is nothing more than the execution of the resolution of the inaugural general meeting, and it cannot be deemed that he selected the contractor without the resolution of the general meeting. Thus, the conclusion of the above contract does not require the resolution of the general meeting for the execution of the above contract. Thus, the defendant, the president of the association, without the resolution of the general meeting, should not be deemed to have violated the Do Government Act by arbitrarily

(D) The remaining evidence judgment and the conclusion of the lawsuit

In addition, the statements made by Nonindicted 6, 7, and 8, who correspond to this part of the facts charged, are sufficient to reverse the above judgment and to recognize that the Defendant voluntarily promoted bathing purchase contracts, cash loan contracts, and construction contracts without a general meeting resolution in violation of Article 24(3) of the Do administration Act, and there is no other evidence to acknowledge otherwise. Thus, the court below's decision that acquitted the Defendant of this part of the facts charged is justifiable, and therefore, the Defendant's assertion of mistake of facts or misapprehension of legal principles as to this part is groundless.

B. As to occupational breach of trust

The prosecutor's grounds of appeal on this part of the facts charged are based on the premise that, in the case of the reconstruction project of this case, even in accordance with the equity method, the obligation to pay value-added taxes on the provision of construction services for apartments in addition to the purchase of subcontracting and direct construction (in the case of the equity method, the value-added taxes on the supply of construction services to Samsung C&T does not occur in the case of the equity method, but the prosecutor does not dispute this issue any longer in the trial). However, in the case of the reconstruction project of this case, it is based on the premise that both value-added taxes related to reconstruction and the value-added taxes on the provision of construction services for Samsung C&T are included in the items of project expenses under the equity method and that the association of this case is agreed to bear all of them. Thus, it is first examined whether such agreement can be seen as

(1) The basic facts

When deliberating on the agenda items for the selection of the contractor at the inaugural general meeting of the instant association, it shall be submitted to the members of the instant association, and the main contents of the “Guidelines for Preparation of Participation in Tender” and the “Conditions for Proposal for Business Participation” attached to the construction contract concluded between the instant association and Samsung T&T.

(A) Guidelines for the Preparation of Participation in Tender (Evidence 1-24, 33 through 35, 49, 52 of the trial record)

(1) Business plans.

Based on the rate of 250%, 250 square-type 330 households, 34 square-type 600 households, 43 square-type 384 households, 48 square-type 166 households, 55 square-type 166 households, and 5,250 square-type 16 households.

On the other hand, the above 34 square meters of national housing size (85 square meters of exclusive use area) and the size of national housing from 43 square meters exceeds the size of national housing.

(2) A contract system.

The construction cost includes direct construction cost, indirect construction cost, and project cost, and various taxes related to reconstruction (corporate tax and value added tax) shall be included in the project cost, and the total limit of interest-free loan project cost shall be 21.7 billion won, and the value-added tax on the construction cost shall be separately stated in the form of the project participation proposal under the contract method.

(3) Equity shares.

The standards for the method of contract shall apply: Provided, That the value-added tax among the project expenses shall be limited to the general sale, the value-added tax equivalent to the payment in kind among the value-added tax for the cooperative members shall be borne by the contractor, and the value-added tax equivalent to the amount to be borne by each cooperative member shall be borne by the relevant cooperative member.

(B) Conditions for proposing project participation (No. 1 No. 79,85 pages)

The conditions for the proposal submitted by Samsung C&T to the instant partnership in accordance with the standards for preparing the project participation proposal are as follows.

In the table division (based on the rate of 250%), average rate of repayment for shares in the contract (based on the average rate of 250 million won) / 20.57% of the direct construction cost / 2,063,153 won (173,945 million won) / 2,063,153 won/p. (173,945 million won) of the indirect construction cost / 282,847 won/p. (23,847 million won) of the indirect construction cost / 282,847 won/p. (23,847 million won) of the basic financial expenses 251,000/p. (21,62 million won) / 251,000/p. 2000 of the total project expenses - 2,5770/p. 1600 of the project expenses / 2000 of the total project expenses - 2,5747 million won

(C) Meanwhile, the fact that the association’s general meeting of the instant association determines the method of implementing the reconstruction project as a equity share method is as seen earlier.

(2) Determination as to whether there was an agreement to include the value-added tax on the provision of construction services in the business expenses to bear Samsung C&T

(A) As evidence consistent with this point, Nonindicted 6,9,8, and 7 made each statement at the investigative agency and the court of original instance or the court of original instance. Each of the above statements is based on the following: (a) the manual for the preparation of participation in the tender stated that “in the case of a share system, value-added tax shall be limited to the share of the business expenses and the amount of value-added tax equivalent to the share-added tax on the share of the union members shall be borne by the Si Corporation; and (b) in the case of a share system in the form of the terms for the proposal for participation in the project, there is no indication “value

(B) However, considering the above facts and the evidence duly examined and adopted by the court below, it is difficult to conclude that the share method is included in the value-added tax on the supply of Samsung C&T among the project expenses, unlike the contract method and the contract method. Rather, the value-added tax among the project expenses in the share method means the value-added tax (paid value-added tax; the general share of the association's apartment and the sales value-added tax on the supply of various services, including the construction services, deducted the purchase value-added tax on the supply of the construction services, and the apartment and the sales value-added tax on the sale of the apartment and the commercial building, as the contract method does not include the value-added tax on the construction of Samsung C&T, and thus, it is reasonable for the association members to bear the value-added tax on the newly constructed apartment to bear the amount of the value-added tax on the supply of the construction services without compensation under the phrase "the value-added tax on the sale of the new apartment and the sale of the new apartment," unlike the contract method.

(1) The method of concluding a construction contract between a reconstruction association and a contractor is classified into a contract system and a share ownership system according to the method of participating in the construction project and the method of allocating the development gains expected to be a reconstruction project. In the case of a contract system, construction works are constructed as in the same manner as the contractor of the general contract for construction works, and construction expenses are paid from a reconstruction association. On the other hand, in the case of a share system, the project implementer provides members with free housing area equal to the free share ratio of the area of land provided by the association members; and in the case of a share system, the project implementer provides the remainder of the area with the charges paid by the association members and the proceeds from sale of the remaining apartment and commercial buildings in the general public. As such, the division between a contract system and a share system is not based on whether it includes value-added tax on the provision of the construction services at the time of the project cost (the total construction cost including value-added tax on the provision of the construction services at all times, including value-added tax on the provision of the construction services at the same time by the same design.

② As can be seen, unlike the case of a contract for construction, the construction project does not actually receive the construction cost from the reconstruction association, but it does not provide the construction project to the reconstruction association. In the case of a contract for construction project, value-added tax shall accrue (limited to apartment areas exceeding the scale of commercial buildings and national housing under the Restriction of Special Taxation Act) as in the case of a contract for construction project, and the value-added tax on the construction project to be paid by the construction project shall be borne by the reconstruction association of the person to whom the construction project is provided through transaction collection (i.e., sales price in the construction project, and the association purchase value-added tax shall accrue). On the other hand, separate from the case of a contract for construction project, the reconstruction association is in the position of supplying apartment goods through the reconstruction project. Accordingly, as for apartment buildings and commercial areas sold to the general public by the reconstruction association other than its members, only the amount of value-added tax shall accrue from the supply of goods (the value-added tax shall not occur, and the remaining amount of value-added tax shall also be paid by the sale association from the general purchaser.

③ Meanwhile, according to the criteria for distinguishing the above method of contract from the method of contract and the share method as seen earlier, the construction cost is the most important in the case of the method of contract. In order to calculate the share ratio without compensation, the entire proceeds of the reconstruction project should be claimed, excluding the total expenses required for reconstruction from the proceeds from the sale of apartment buildings and the proceeds from the sale of commercial buildings. In this context, under the premise that the total expenses required for reconstruction include the value-added tax on the provision of construction services, it is not necessary to state the separate method of value-added tax on the supply of construction services, such as the contract method, in indicating the share ratio in the case of the reconstruction project of this case, it is not necessary to state the separate method of value-added tax on the supply of construction services as in the method of contract. In addition, in calculating the share ratio of the above association's reconstruction project of this case, the average amount of KRW 20,777,00,00,00 and the amount of KRW 30,310,460,80.

④ In addition, even if the basic facts of the above paragraph (1) are examined, if the construction cost, indirect construction cost, basic relocation cost, and financial expenses are identical in both the contract amount and the share system in the calculation method, and the project expenses are also 21.7 billion won in the contract amount (280% in the case of a contract for work) and 21.68 billion won in the case of a share system (2.8 billion won in the case of a contract for work, 1.45 billion won in the case of a share system, and 1.7.5 billion won in the case of a contract for work, if the share system is included in the project expenses, it is difficult to accept the allegation that the project expenses are included in the project expenses, such as the contract expenses, which are less than the method of the contract in the case of a share system (in this case, the amount according to the charges of this case).

(3) Sub-decisions

Therefore, if the reconstruction project of the association of this case is promoted in accordance with the equity method, the value-added tax for the provision of construction services is included in the project expenses, and there is an agreement to bear the above value-added tax, this part of the facts charged is deemed to be a case where there is no proof of crime not to be determined. In the same purport, the court below's decision that acquitted the defendant of this part of the facts charged is justified, and there is no assertion of misunderstanding of the facts

5. Conclusion

Thus, the prosecutor's appeal is without merit and it is dismissed under Article 364 (4) of the Criminal Procedure Act.

Judges Ko Young-han (Presiding Judge)