Defendant 1 and one other

Defendant 2 and Prosecutor (Defendants)

Park Woo-won (Court of Prosecution) and Kim late (Court of Justice)

Law Firm Geok et al.

Incheon District Court Decision 2016Ra1167 Decided December 16, 2016

The part of the judgment of the court below against the Defendants is reversed.

Defendant 1 shall be punished by imprisonment for eight months.

except that the execution of the above punishment shall be suspended for two years from the date this judgment becomes final and conclusive.

The offering of a bribe to Defendant 1 and Defendant 2 are acquitted, respectively.

The summary of the judgment of innocence shall be disclosed to the Defendants.

1. Summary of grounds for appeal;

A. Defendant 2

1) misunderstanding of legal principles and mistake of facts

Defendant 2 was unaware of the fact that Defendant 1 sent the salted fish in his name, and Defendant 1 cannot be assessed as a bribe with respect to the salted fish that Defendant 1 sent to a third party. There is no relation between the salted fish and the duties of Defendant 2, and Defendant 1 cannot be assessed as the same as the receipt by Defendant 2 of the fished fish that Defendant 1 sent to a third party.

Nevertheless, the court below erred by misapprehending the legal principles that recognized the acceptance of bribe against Defendant 2 or by misunderstanding facts and affecting the conclusion of the judgment.

2) Unreasonable sentencing

The sentence of the lower court against Defendant 2 (the penalty of KRW 10 million, the penalty of KRW 3849,300, the penalty of KRW 3849,300, and the suspended sentence (the suspended penalty of KRW 1 year) is too unreasonable.

(b) Prosecutors;

1) As to Defendant 1

A) misunderstanding of facts

In the case of occupational embezzlement, the amount embezzled by Defendant 1 shall be deemed to be the full amount of KRW 128,206,00, which was recovered as if he purchased false packing materials.

Nevertheless, the court below recognized the crime of occupational embezzlement only for KRW 61,026,60 among the subsidies 120,000,000,000, which was received from the ▽▽▽△ City as the target amount of embezzlement. The court below erred by misunderstanding the facts, which affected the conclusion of the judgment.

B) Unreasonable sentencing

The sentence of the lower court against Defendant 1 (two years of suspended sentence for one year of imprisonment) is too unhued and unreasonable.

2) As to Defendant 2 (inductive and unfair)

The lower court’s sentence against Defendant 2 is too uneasible and unreasonable.

2. Judgment on the misapprehension of legal principles or mistake of facts by Defendant 2

A. Summary of the facts charged

From January 2012, Defendant 2 was working as the head of △△△△△△△△△△△△ in charge of the fishermen’s fishery guidance, subsidy-related projects and the control of fishing-related activities, and Defendant 1, the head of Pyeongtaek Ganaean, who was Defendant 1, was asked to provide fishery guidance to the fishermen in favor of the members of the △△△△△△△△△ in the course of resolving disputes regarding the area of scamed fish and the operational method of the fishermen in the area of Pyeongtaek-gu and the

At around November 2013, Defendant 2: (a) heard and consented to the speech, Defendant 2: (b) sent the list of the persons who wish to spokeed to spoke to Defendant 1; and (c) had Defendant 1 send the spokeed to the said persons with the name of Defendant 2 written on the name of Defendant 2 and then sent the spokeed fish as if Defendant 2 took the gift.

Defendant 2, in addition to this, from November 12, 2013 to November 12, 2014, had 329 persons who wish to donate the salted fish, as indicated in the attached list of crimes, send the total amount of 11,186,00 won to Defendant 1, and received a bribe in relation to the public official’s duties in a manner that did not pay the price.

B. The judgment of the court below

The court below found Defendant 1 guilty on the facts charged, in light of the following circumstances revealed in the evidence revealed in its judgment, that Defendant 2 was aware of the fact that Defendant 1 sent a sled fish in his name, Defendant 2 was involved in the preparation of the list of the fished fish, Defendant 2 was also involved in the preparation of the list of the fished fish, the relation between the Defendants, the duties relationship between Defendant 2, Defendant 2, Defendant 2, the fact that sending a new fished fish in the name of Defendant 2 is an publicity purpose or it is difficult to view it as a courtesy or a courtesy gift, and that the person who received the gift is not unrelated to Defendant 2 or ○○○○ Office.

C. Judgment of the court below

1) Relevant legal principles

Article 129(1) of the Criminal Act provides that a public official shall be punished by imprisonment with prison labor for not more than five years or suspension of qualifications for not more than ten years where the public official gives or receives a bribe in the course of performing his/her duties, and apart from this, Article 130 of the Criminal Act provides that a public official shall be punished by imprisonment with prison labor for not more than five years or suspension of qualifications for not more than ten years where the public official gives or receives a bribe to a third party in connection with his/her duties. In comparison with the crime of providing a third-party bribery under Article 130 of the Criminal Act, if a public official directly receives a bribe and has a third party deliver it to a third party without receiving such bribe, and if such third party receives such bribe, such punishment shall be imposed only on the same crime as the simple bribery where the public official receives such bribe, and if such third party receives such bribe without receiving a direct bribe from the third party, the public official shall not be punished for such a bribe by another public official or his/her agent, even if not receiving such bribe from the third party.

2) Examining the facts charged in accordance with the aforementioned legal doctrine, in order to establish the simple bribery charge against Defendant 2, it is insufficient to establish that Defendant 2 had Defendant 1 deliver the salted fish to Defendant 329, a third party, in his own name, and it should be proved that the 329 person has a relationship that can be evaluated as being directly received by Defendant 2 as being directly received by Defendant 2. Accordingly, at least, Defendant 2 sent the gift, etc. to the 329 person (or some of them) at his personal expense even before 2013, or it was anticipated that Defendant 2 will individually forward the gift to Defendant 329 person at his own expense around 2013 and 2014, but it should be proved that Defendant 2 was exempted from the burden by having Defendant 1 send the salted fish.

그런데 원심에서 적법하게 채택하여 조사한 증거들에 의하여 알 수 있는 다음의 사정 즉, ① 피고인 1이 ○○도청 □□과에 새우젓을 보낼 사람들의 명단을 요청하자, □□과 직원 공소외 1이 각 팀에서 새우젓을 보낼 사람들의 명단을 취합하여 작성한 후 피고인 1에게 보낸 점, ② 그 명단에 기재된 사람들은 주로 퇴직한 ○○도 □□과 공무원, ○○도의회 의원, 정부 ☆☆☆☆☆ 공무원 등인 점, ③ 피고인 2는 피고인 1에게 자신의 명의로 새우젓을 보낼 것을 요구하였던 것이 아니라, 피고인 1이 피고인 2의 이름으로 보내는 것을 2012. 11.경 알고도 묵인해왔던 것으로 보이는 점, ④ 피고인 2가 2014년에는 피고인 1에게 보내는 명단에 일부 지인들을 추가하기도 하였으나, 이들 역시 주로 ○○도청 공무원들로서 앞서 작성된 명단의 사람들과 크게 다를 바 없는 점, ⑤ 피고인 2가 2013년 이전에 위와 같은 사람들에게 개인적으로 선물 등을 보내왔다고 볼만한 아무런 증거가 없는 점 등에 비추어 보면, 검사가 제출한 증거들만으로는, 사회통념상 위 329명이 새우젓을 받은 것을 피고인 2가 직접 받은 것과 같이 평가할 수 있는 관계가 있는 경우임을 인정하기에 부족하고, 달리 이를 인정할만한 증거가 없다.

3) In order to establish the crime of providing a third-party bribery under Article 130 of the Criminal Act with respect to Defendant 2 without establishing a simple bribery charge under Article 129(1) of the Criminal Act if the “sable fish” was “sable fish” in accordance with the aforementioned legal doctrine, Defendant 2 is subject to illegal solicitation from Defendant 1 in relation to his duties. Such circumstances do not appear particularly.

Meanwhile, even if a bribe is interpreted as “interest equivalent to the price of a fresh fish” in the facts charged, the logic that the Defendants may be punished as the crime of bribery by deeming that a bribe was not received directly by the Defendants, is inconsistent with the legal doctrine of the above crime of bribery and the third-party bribery, and it does not mean that a third-party bribe without any unlawful solicitation may be punished as the crime of simple bribery, and thus, it is not permissible.

4) Thus, the facts charged in this case against Defendant 2 constitute a case where there is no proof of a crime, and thus, a not-guilty verdict shall be pronounced pursuant to the latter part of Article 325 of the Criminal Act, and the judgment of the court below which found the guilty guilty shall be erroneous by misapprehending the legal principles on the bribery charge or by

Ultimately, Defendant 2's above misapprehension of legal principles or misconception of facts is justified.

3. Ex officio determination on Defendant 1

We examine the offering of a bribe to Defendant 1 ex officio.

A. Summary of this part of the facts charged

Defendant 1: Defendant 2, the head of △△△△△△△△△△△ Office, had Defendant 2, who was the head of △△△△△△△△△△△△△△△△△△△△, sent the fishery guidance to be favorable to the local fishermen in the course of resolving disputes over the area of △△△△△△△△△ and the knicked fish fishing, and had Defendant 2 receive the salted fish with a view to requesting Defendant 2 to view the subsidy-related business and the convenience in regulating fishing operations.

Accordingly, around November 2013, Defendant 1 contacted Defendant 2 with telephone calls and called “the person who is engaged in a gift will send the sporesed fish if he is the person who is in charge of the gift,” and Defendant 2 consented to this and sent the list of the persons who have sent and intended to do so to Defendant 1. After Defendant 1 received the above list, Defendant 1 purchased the sporesed fish at the expense of the Dokdong-gu Seoul Metropolitan Government, and then sent it to Defendant 2 as if he donated the said sporesed fish to the persons who are directly in charge of the list of the sporesed fish.

Defendant 1: (a) from November 12, 2013 to November 12, 2014, Defendant 1 sent a total of KRW 11,186,00 to 329 persons, as indicated in the attached list of crimes, a total of KRW 11,186,00, as indicated in the attached list of crimes; and (b) granted a bribe to Defendant 2 in relation to the public official’s duties in a manner that Defendant 2 did not receive the price from Defendant 2.

(b) Markets:

As seen earlier, Defendant 2 did not constitute the crime of bribery, it is judged that Defendant 1 did not constitute the crime of bribery for the same reason.

Therefore, since the above facts charged against Defendant 1 constitute a case without proof of crime, it shall be pronounced not guilty pursuant to the latter part of Article 325 of the Criminal Act, and the judgment of the court below which found Defendant 1 guilty is erroneous by misapprehending the legal principles as to the crime of perjury or by misunderstanding facts, which affected the conclusion of the judgment. In this respect, the judgment of the court below

On the other hand, the prosecutor's assertion of misunderstanding of facts is still subject to the judgment of this court even though the above ground for ex officio reversal exists.

4. Regarding the prosecutor's assertion of mistake of facts (the point of occupational embezzlement against the defendant 1)

The lower court determined that the crime of occupational embezzlement was established against KRW 58,973,60, on the ground that the victim was first specified as ▽△△△△, Defendant 1 used KRW 120,000,000 subsidies of City/Do for the purchase cost of packing materials in line with its purpose, and that the remaining KRW 61,026,60,00 was embezzled, and that the crime of occupational embezzlement was committed against KRW 61,026,60.

In full view of the evidence duly adopted and examined by the court below, the above judgment of the court below is just, and there is no error of law as alleged by the prosecutor.

5. Conclusion

Therefore, among the judgment of the court below, there exists a ground for ex officio reversal as seen earlier, and Defendant 2’s appeal is well-grounded. Thus, without examining the prosecutor’s allegation of unfair sentencing as to Defendant 1, the part against the Defendants among the judgment below pursuant to Article 364(2) and (6) of the Criminal Procedure Act is reversed, and the following is again decided after pleading.

Punishment of the crime

피고인 1은 ▽▽시 ◁◁면 ▷▷리에 있는 ◇◇◇◇◇ 계장이다.

1. Uttering a falsified investigation document;

피고인 1은 2013. 2. 19. (주소 생략)에 있는 ○○도 해양수산자원연구소에서, 공소외 2가 같은 날 ◎◎군 ◎◎읍 (지번 1 생략)에 있는 ♤♤♤♤수협 지도과 내에서 그가 사용하던 컴퓨터를 이용하여 ‘교육이수 확인증’이라고 기재하고 성명란에 ‘공소외 3(주민등록번호 생략)’, 주소란에 ‘○○도 ▽▽시 ◁◁면 (지번 2 생략)’ 이수연도와 이수일, 이수기간란에 ‘2008. 02. 18. 1일 연근해어선안전조업정기 및 특별교육’, ‘2008. 07. 28. 1일연근해어선 안전조업 특별교육’, ‘2009. 02. 18. 1일 연근해어선안전조업정기 및 특별교육’, ‘2009. 07. 21. 1일 연근해어선 안전조업 특별교육’, ‘2010. 02. 09. 1일 연근해언선안전조업정기 및 특별교육’, ‘2010. 07. 26. 1일 연근해어선 안전조업 특별교육’, ‘2011. 02. 09. 1일 연근해어선안전조업정기 및 특별교육’, ‘2011. 07. 19. 1일 연근해어선 안전조업 특별교육’, ‘2012. 02. 09. 1일 연근해어선안전조업정기 및 특별교육’, ‘2012. 08. 21. 1일 어업질서 확립을 위한 어업인 순회교육’, 합계란에 ‘10일’, 작성일자란에 ‘2013. 02. 19’을 각 기재하고, 발행인란에 ‘♤♤♤♤수산업협동조합 조합장 공소외 4’라고 기재한 뒤 그 옆에 공소외 2가 소지하고 있던 위 공소외 4 명의의 조합장 직인을 날인하는 방식으로 위조한 공소외 4 명의의 ‘교육이수 확인증’을 그 위조된 정을 모르는 담당 공무원 공소외 5에게 제출하여 이를 행사하였다.

2. Fraud;

피고인 1은 ☆☆☆☆☆에서 추진하는 수산업경영인육성사업과 관련하여 ○○도해양수산자원연구소에서 수산업 경영인(어업인 후계자)으로 선정되면 융자금을 지원받을 수 있다는 사실을 알고, 사실은 피고인 1의 아들인 공소외 3이 수산업을 경영할 의사가 없음을 알면서도 마치 공소외 3이 어업을 경영할 의사가 있는 것처럼 공소외 3 명의의 어업인 후계자 신청서와 허위의 어업 관련 교육이수 확인증, 영어경력 확인서 등을 제출하여 수산업경영인 육성자금을 받아 자신의 어업경영에 사용하기로 마음먹었다.

On February 19, 2013, Defendant 1 submitted to the ○○do Maritime Resources Research Institute the certificate of completion of education, the certificate of completion of education, the application for the successor to fishery of Nonindicted 3, the business plan, and the certificate of English career to Nonindicted 5 who are the public official in charge of Nonindicted 3. However, his children did not intend to engage in fisheries or to engage in fisheries in the future.

Nevertheless, around July 17, 2013, Defendant 1 deceivings the public official in charge as above and received 50 million won from the Republic of Korea as the fostering fund for fishery managers.

3. Occupational embezzlement 1)

On June 28, 2011, Defendant 1 and Nonindicted 6, the 34 members of the Rural Development Association (the suspension of indictment on the same day) were paid KRW 120,000,000 of City/Do subsidies as “the cost for supporting the packing materials for fishery products in 2011” by submitting a business plan, estimate, and application for subsidies, which will cover a total of KRW 200,000 (per KRW 80,000,000,000,000,000) in relation to the “expenses for supporting the packaging materials for fishery products in 2011” from the victim on or around August 25, 2011.

A subsidy received from a victim for the above project shall be used only for the project plan and shall be prohibited from being used for other purposes, and a settlement report clearly stating the details of the subsidy must be submitted to the victim 2). In addition, if the subsidy is applied for or received by unlawful means, such as submitting a false project plan, an application for the grant of subsidies, and a settlement report, the victim may choose not to pay the subsidy in full and may order the return of the subsidy already paid.

Although the Defendant and the Republic of Korea had been well aware of the fact that the said subsidies should be used only for the purposes prescribed in the relevant business plan, the Defendant and the Republic of Korea, as if they received the said subsidies and used the unused subsidies to the companies operated by Nonindicted 7 and Nonindicted 8, used them again, used them for purposes other than those prescribed by the business plan, and submitted a false settlement report to the victim, were intended to use the said subsidies as the cost of the fishing village fraternity.

In collusion with Nonindicted 7 and Nonindicted 8 (Suspension of Prosecution on the same day), the Defendant and the Republic of Korea: (a) around August 25, 201, in which the Defendant and the Republic of Korea operate Dondong, used KRW 58,973,400 among the subsidies to purchase the above packing materials received from the victim for the purchase of packing materials; (b) the remainder of KRW 61,026,60 and KRW 80 million, which were not used for the purchase of packing materials; (c) on December 15, 2011 and December 20, 200 each amount of KRW 70,513,300, total of KRW 141,026,60 and KRW 141,00,000 for the purchase of packing materials; and (d) Nonindicted 201, an amount of KRW 61,000,000,0000 for the purchase of the said packing materials, shall be refunded to 20,001,01.

As a result, Defendant 1 embezzled City/Do subsidies equivalent to KRW 61,026,60 among the total KRW 120,000,000, in collusion with the executive members, Nonindicted 7, and Nonindicted 8.

Summary of Evidence

1. Defendant 1’s statement in the original judgment

1. The statement made by Non-Indicted 10 in the second trial record of the court below

1. Each police interrogation protocol on Nonindicted 7, Nonindicted 8, Nonindicted 11, Nonindicted 12, Nonindicted 13, Nonindicted 14, and Nonindicted 9

1. Each police statement on Nonindicted 10, Nonindicted 6, Nonindicted 15, Nonindicted 9, Nonindicted 16, and Nonindicted 5

1. Forwarding of related data to operators of fisheries, forwarding of data by operators of fisheries, details of transactions by Suhyup Bank, and support business for packing materials for fishery products (201 agricultural development department);

1. An investigation report (including false tax invoices and the details of entry and departure transactions of bankbooks), and accompanying documents;

1. Investigative report (the confirmation and report on the utilization of subsidies for packing materials supporting projects);

Application of Statutes

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

Articles 234 and 231 of the Criminal Act, Article 347(1) (Fraud) of the Criminal Act, Articles 356, 355(1), and 30 (the point of occupational embezzlement) of the Criminal Act, and the choice of imprisonment, respectively,

1. Aggravation of concurrent crimes;

Articles 37 (former part), 38 (1) 2, and 50 of the Criminal Act

1. Suspension of execution;

Article 62(1) of the Criminal Act

Reasons for sentencing

In light of the amount of fraud and the amount of embezzlement of this case, and the fact that the crime is not good in light of the method of crime is an unfavorable sentencing factor, the fact that the victim was fully repaid the money borrowed to the victim of fraud, the amount acquired by the crime of occupational embezzlement is not used for an individual purpose, and is used for the members of the Rural Development Association, and the fact that the amount of embezzlement was deposited to the victim of the crime of occupational embezzlement is considered as favorable sentencing factors, and the punishment is determined as per the order, taking into account the various circumstances, such as Defendant 1’s age, character and behavior and environment, motive, means, consequence and consequence of the crime

Parts of innocence

1. Defendant 1

A. The point of offering of bribe

The summary of this part of the facts charged is the same as the above 3. A. B. of the above 3.-B. of the above 3.-B. Thus, since there is no proof of criminal facts for the same reason, the acquittal is pronounced in accordance with the latter part of Article 325 of the Criminal Procedure Act, and the summary of the judgment of innocence is publicly notified in accordance with Article 58

B. The point of occupational embezzlement

1) Summary of this part of the facts charged

around June 28, 2011, Defendant 1 and Nonindicted 6, the 34 members of the Rural Development Association, including the Republic of Korea, submitted a business plan, estimate, and application for a subsidy of KRW 200 million (per KRW 80,000,000,000,000,000,000) with respect to the “expenses for supporting packaging materials for fishery products” in 2011, and received a subsidy of KRW 120,00,000,000,000,000,000,000,000,000,000,000, and00,000,00,00

A subsidy that is received as the above business name from the ▽△ City shall be used only for the purpose of the business plan and shall be prohibited from being used for other purposes, and a settlement report clearly stating the details of the use of the subsidy must be submitted to the ▽△△ City. In addition, if a subsidy is applied or received by unlawful means, such as submitting a false business plan, an application for the grant of subsidies, and a settlement report, the ▽△△ City may choose not to pay the subsidy in full

Although the Defendant and the Republic of Korea had been well aware of the fact that the said subsidies should be used only for the purposes prescribed in the relevant business plan, the Defendant and the Republic of Korea, as if they received the said subsidies and used the subsidies that were not actually used, were paid to the companies operated by Nonindicted 7 and Nonindicted 8, and used them again to use them for purposes other than those prescribed by the business plan, and submitted a false report on settlement of accounts in the way of submitting the false report to the Ⅳ City

In collusion with Nonindicted 7 and Nonindicted 8, who operated △△△△ Group, the Defendant and the Republic of Korea: (a) had not used subsidies to purchase the above packing materials received from Nonindicted 7 on December 15, 2011 and twice on December 20, 201, each of the above KRW 141,026,600, respectively, purchased packing materials with false tax invoices of KRW 70,513,300, respectively; and (b) from January 16, 2012 to April 10 of the same year, the Defendant and the Republic of Korea deposited KRW 128,206,000, excluding the additional tax with the general account in the name of Nonindicted 9 (Account Number omitted) in order to pay the user fees to each of the above stores by using the said stores on February 16, 2015.

(ii) the board;

원심이 적법하게 채택하여 조사한 증거들에 의하면, 피고인 1은 2011. 8. 25. ▽▽시로부터 시·도 보조금 1억 2천만 원을 받은 후 2011. 9. 21.부터 2011. 12. 16.까지 ●●●●●●, ▲▲▲▲, ■■■■으로부터 포장재를 구입하고 그 비용으로 합계 58,973,400원을 지출한 사실(증거기록 193쪽, 209쪽, 2719쪽, 제2회 공판조서 중 증인 공소외 10의 진술기재), 총 사업비 중 자부담금 8천만 원은 2011. 12. 16. 비로소 입금된 사실, 위 피고인은 그 무렵 공소외 7로부터 허위 세금계산서를 발급받고 그에게 141,026,600 주3) 원 을 지급한 후 부가가치세를 뺀 금액을 돌려받아 임의로 사용한 사실이 인정된다.

According to the above facts, Defendant 1 embezzled only KRW 61,026,60,00 remaining after subtracting KRW 58,973,400 paid for the purchase of actual packing materials from KRW 120,000 with City/Do subsidies, and otherwise, it is insufficient to recognize that the evidence submitted by the prosecution alone embezzled City/Do subsidies exceeding KRW 61,026,60.

Therefore, the facts charged regarding embezzlement of exceeding KRW 61,026,60 among City/Do subsidies fall under a case where there is no proof of a crime, and thus, the acquittal should be pronounced pursuant to the latter part of Article 325 of the Criminal Procedure Act. However, as long as it is found guilty of occupational embezzlement of KRW 61,026,60, which is the relation of such crime, the judgment of innocence shall not be rendered separately.

2. Defendant 2

The summary of the facts charged against Defendant 2 is the same as the above No. 2.A., and Article 2. C. of the 2.-3. of the 2. of the 2. of the 2. of the 2. of the 2. of the 2. of the 2. of the 2. of the 2. of the 325 of the Criminal Procedure Act,

(attached Form omitted)

Judges Kim Hyun-un (Presiding Judge)

1) The content of this part of the facts charged is unclear, such as: (a) the Defendant did not specify the victim; and (b) the Defendant did not embezzled City/Do subsidies; (c) the Defendant embezzled the money returned from Nonindicted 7 in custody of KRW 128,206,00; and (d) it appears that the Defendant indicted for embezzlement. However, in light of the fact that Nonindicted 7 stated that the Defendant and Nonindicted 7 were co-principals of occupational embezzlement; and (c) the use and return of City/Do subsidies, the facts charged in this part of the facts charged are deemed to have been prosecuted “the Defendant embezzled City/Do subsidies” and the facts charged are summarized to the extent that it does not infringe the Defendant’s right to defense (see the part of innocence below).

Note 2) Although the indictment is written as “influence”, it is apparent that it is a clerical error in the ▽▽▽△△, and thus, it is corrected and written.

3) The sum of the remaining City/Do subsidies of KRW 61,026,60 and self-charges of KRW 80,000;