Defendant 1 and 2

Kim Ho-hun

Law Firm Faithful (Attorney Choi Byung-soo et al., Counsel for defendant-appellant)

Defendant 1 shall be punished by imprisonment with prison labor for eight months, and by a fine of seven million won.

However, for two years from the date this judgment became final and conclusive, the execution of the above sentence against Defendant 1 shall be suspended.

Defendant 3 is not guilty.

[209 Highest 1235]

Defendant 1 is the actual representative of Defendant 2 and the representative of Nonindicted Co. 5, and Defendant 2 is the corporation established for the purpose of landscaping business.

1. Defendant 1

A. A. On January 25, 2008, the Defendant submitted a list of the total tax invoices by the seller in the second half of 2007, stating that the Defendant supplied services of KRW 445,454,545 to Nonindicted Co. 5 on the second half of 2007 (from October 1, 2007 to December 31, 2007), although there was no fact that the Defendant supplied goods or services under the Value-Added Tax Act to Nonindicted Co. 5.

B. On December 26, 2007, the Defendant received a tax invoice of KRW 445,454,545,545 from the supplier, even though the Defendant did not receive any goods or services under the Value-Added Tax Act from the office of the above Defendant 2 Co., Ltd., the Defendant operated by the Defendant, and Nonindicted Co. 5 Co., Ltd., the Defendant received a tax invoice of KRW 445,455,545.

C. Around January 25, 2008, the Defendant submitted the two-year total tax invoice for 2007, stating that the Defendant had been provided with the services of KRW 493,009,092 in total on three occasions from the aftermath of 1, 2007 (from October 1, 2007 to December 31, 2007), although there was no fact that the Defendant had been provided with the goods or services under the Value-Added Tax Act from the aftermath of △, and the fact that the Defendant had been provided with the goods or services from the aftermath of △, 193,09,092.

2. Defendant 2 corporation

As stated in paragraph (1) above, Defendant 1, the actual representative of the Defendant, did not have supplied or had been supplied goods or services under the Value-Added Tax Act with respect to the Defendant’s business, but committed a violation under paragraph (1)(A) and (c) above.

[209 Highest 2039]

Defendant 1 is an operator of the △△ comprehensive landscape architecture, who is a tree supplier related to the construction of the FFF.

The Creation Corporation of Native Plant Resources was entrusted by the Agricultural Technology Center in Sungsung-si with the order and supervision of the Agricultural Technology Center in order to create the plant source in the Ilsung-si (hereinafter 2 omitted) on September 11, 2006 and decided to carry out the project by making the first construction period up to November 30, 2007 and the second construction period up to April 30, 2008. The supply contract related to the above construction was concluded as a free contract (contract amounting to 315,00,000,000 won) between the Samsung-si and the Seoul Special Self-Governing City (the head of the Association, the head of the Association, and the head of the Association, the Special Self-Governing City Forest Association, the representative of the above △△△ Group (Defendant 1) on the supply of the above trees.

1. Occupational breach of trust;

As the representative of a tree supplier, Defendant 1 must supply large trees that meet the design standards, and Nonindicted 2 (Class 7 public officials belonging to the Agricultural Technology Center), who is a public official in charge of the construction of the said “self-vegetable plant source” (Class 7 public officials belonging to the Agricultural Technology Center), has the duty to manage and supervise the construction of the said self-vegetable plant source and to supply large trees that meet the design standards.

Nevertheless, around March 14, 2008, Defendant 1 and Nonindicted 2 conspired with Defendant 1 and Defendant 2 obtained property benefits equivalent to 2,415,000 won (the difference per share 16,100 x150) by receiving the normal supply of large-scale trees with a height of 5 meters in height and 5cm in diameter (37,500 won per share) in terms of design specifications in the process of supplying large-scale 150 weeks, which are government-funded materials at the construction site of the FF at the site of the FF and at the construction site of the FF, and Nonindicted 2 supplied large-scale trees with a diameter of 37,500 square meters in diameter, and caused damage to Korea equivalent to the same amount.

2. Violation of the Construction Technology Management Act;

No person shall borrow a construction technology qualification certificate.

Nevertheless, from around December 2005 to December 2008, Defendant 1 borrowed a construction technology qualification certificate from 12 persons in total as shown in the attached list of crimes, as well as from the office of Nonindicted Co. 7 Co. 8 at the time of harmony.

3. Violation of the Punishment of Tax Evaders Act;

No person shall deliver tax account statements without supplying goods or services pursuant to the provisions of the Value-Added Tax Act.

A. On December 26, 2007, Defendant 1 received a false tax invoice as if he received 200 million won in the office of the managing Defendant 2, at the time of Mansung, and as if he received from Nonindicted 9, the operator of Mansung, from Nonindicted 9, the supply value equivalent to 200 million won in real transactions.

B. On December 27, 2007, Defendant 1 received a false tax invoice (amounting to KRW 192,310,000) equivalent to KRW 269,310,000 from Defendant 2’s office (amounting to KRW 192,310,000) from Defendant 10, as the amount of actual transactions between Defendant 1 and Defendant 2’s office was merely 7,000,000 won, even if there was a transaction equivalent to KRW 269,310,00.

[209 Highest 1235]

1. Defendant's legal statement;

1. Each accusation (including attached documents), door answers, tax invoices, total tax invoices by buyer, a list of purchase tax invoices;

[209 Highest 2039]

1. Partial statement of the defendant;

1. Each prosecutor's interrogation protocol against the defendant and non-indicted 2

1. Each prosecutor's statement against the defendant;

1. Each prosecutorial protocol against Nonindicted 11, 12, and Defendant 3

1. Each investigation report (report attached to the documents by Defendant 1, and a copy of the certificate of construction technology lent in △△ comprehensive landscape) shall be attached;

1. A written accusation (including attached documents) and each written accusation (including attached documents);

1. Article applicable to criminal facts;

Defendant 1: Article 11-2(4)1 (a) of the Punishment of Tax Evaders Act, Article 11-2(4)3 (a) of the same Act, Article 356 and Article 355(2) (a) of the Criminal Act, Article 33 of the Criminal Act, Article 42-2 subparag. 4, and Article 6-3 (a) of the Construction Technology Management Act (a point of the name of construction engineer)

Defendant 2: Articles 11-2 (4) 3 and 3 of the Punishment of Tax Evaders Act;

1. The choice of each sentence of imprisonment (Defendant 1);

1. Aggravation for concurrent crimes;

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

1. Suspension of execution;

Article 62(1) of the Criminal Act (Consideration, such as the fact that there is no previous record of the same kind, the fact that the difference equivalent to the difference due to bamboo below the standard has been settled in full, the reason for the delivery of bamboo, and the fact that it is contradictory

1. Summary of the facts charged in this case

A. Facts charged

The defendant and non-indicted 2 knew that the defendant and non-indicted 2 did not supply trees related to the primary construction until December 10, 2007, which was the date of preparation of the first completion inspection report concerning the above self-help plant construction, as well as the fact that other landscaping construction is not completed.

Nevertheless, as the Defendant and Nonindicted Party 2 conspired on December 10, 207, at the site office of the work site of the work site of the work site of the new plant center located in Sungsung-si (hereinafter referred to as "2 omitted), as if the Defendant completed the first minute construction, the Defendant and Nonindicted Party 2 was under the order of the director in charge of the construction work of the original plant center (the first minute), the completion of the construction work on November 30, 2007, and the inspection on the completion of the said construction work (the first minute) on December 10, 207, and completed the construction without the completion according to the construction drawings, specifications, and other agreements: Provided, That the prosecutor of the buried part, such as underwater and underground structures, was in accordance with the attached supervision protocol, stating that "the inspection on completion was completed on December 10, 2007," and did not complete the inspection on completion of the construction work after Nonindicted Party 1 Company 1’s representative director, Nonindicted Party 1 Company 1, 2007.

As a result, the Defendant and Nonindicted Party 2 prepared a false report on completion inspection, which is an official document prepared or implemented for the purpose of exercising supervision services on behalf of the Defendant and Nonindicted Party 2.

(b) Criminal names and applicable provisions of Acts;

A prosecutor was indicted to the effect that the application of Articles 227 and 229 of the Criminal Act constitutes the crime of preparing false official documents and the crime of uttering of false official documents.

2. Determination

(a) The elements of the crime of preparing false official documents and uttering of false official documents;

In order for the crime of preparing false official documents under Article 227 of the Criminal Act to be established, it shall be applicable to cases where the public official prepares or alters falsely documents or drawings concerning his/her duties with the intention of exercising them.

In other words, the subject of the act is a public document. The object of the act is a public official. In order to punish a person who is a public official and is obvious who is not a public official in terms of his status as a crime of preparing false public documents and the crime of uttering thereof, there should be special provisions in relation thereto. He cannot be punished as the above crime solely on the ground that his work constitutes the affairs of the State or local government, or that the organization to which he belongs is an administrative agency (see Supreme Court Decision 2008Do93, Mar. 26, 20

Although the concept and scope of a public official are not prescribed in the Criminal Act, the concept and distinction of a public official is clearly prescribed in Article 2 of the State Public Officials Act and Articles 1 and 2 of the Local Public Officials Act, and other provisions explicitly stipulating that a public official is deemed a public official under individual Acts. Therefore, even if a person performs duties related to public official or performs duties after being commissioned by a public office, such circumstance alone constitutes an interpretation or equivalent to a public official under Articles 27 and 229 of the Criminal Act, and thus, construing that a person constitutes an element of each of the above crimes constitutes an analogical interpretation and is contrary to the principle of no punishment without law.

B. The maker of the instant completion inspection protocol

According to the prosecutor's interrogation protocol and investigation report (a copy of the official document prepared by the supervisor, Defendant 3, and Nonindicted 14) on the Defendant, Nonindicted 15, the observer’s senior supervisor for landscaping, the observer’s responsibility supervisor, and Nonindicted 14 have signed and sealed the completion inspection report of this case. The name of Nonindicted 2 is not indicated in anywhere, the name of Nonindicted 2, the Defendant and Nonindicted 14, etc. are supervisors working in the architect office of Nonindicted 1 Co. 1 (hereinafter referred to as “Nonindicted 1”). Nonindicted Co. 1 was selected as supervisory company on the creation of the instant plant in the open competitive bidding conducted by the Incheon Local Government Procurement Service, and the Defendant was the supervisor of the instant construction.

According to the above facts, the Defendant, Nonindicted 15, and 14, who belongs to Nonindicted Co. 1, a stock company, are not Nonindicted 2. Therefore, in order to establish the crime of preparing false official documents on the ground that the protocol of completion of the instant case was false, Nonindicted 15, Defendant, and Nonindicted 14, who was the originator, are public officials. If Nonindicted 15, Defendant, and Nonindicted 14, who was the originator, are not public officials, the instant protocol of completion of the instant case is merely private documents. Even if Nonindicted 2, who was a domestic public official, knew that the content of the instant protocol of completion of the instant case was false, or instructed the Defendant, etc. to prepare a protocol of completion of the instant case with false contents, he was not a public official, and the document was not a public official, but a public official, and is merely a part of his participation in the

(c) Whether the originator is a public official;

Nonindicted 15, Defendant, and Nonindicted 14 are only supervisors belonging to supervisory companies that are stock companies, and there is no evidence to regard them as public officials prescribed in the State Public Officials Act and the Local Public Officials Act.

Pursuant to the proviso of Article 16(1) of the former Act on Contracts to Which a Local Government Is a Party (amended by Act No. 9423, Feb. 6, 2009) and Article 56(1)1 of the Enforcement Decree of the same Act, Nonindicted Co. 1 was responsible for the supervision of the instant construction project. The Defendant appears to have prepared a completion inspection report as a supervisor who performs responsible supervision pursuant to the proviso of Article 17(1)1 and Article 17(2) of the same Act.

Article 38 of the former Act on Contracts to Which a Local Government is a Party (amended by Act No. 9423, Feb. 6, 2009) provides that a contracting officer of a specialized institution under the provisions of Article 7(1), a resident supervisor under the provisions of Article 16(2), and a member of the contract deliberation committee under the provisions of Article 32(1) shall be regarded as a public official in the application of penal provisions of the Criminal Act and other Acts with regard to his/her duties, and there is no provision that a specialized institution under the proviso of Article 16(1), the proviso of Article 17(1), and Article 17(2) and its responsible supervisor shall be regarded as a public official.

On the other hand, Article 45 of the Construction Technology Management Act provides that a supervisor who performs his duties under the provisions of Articles 27 (Liability Supervision, etc. of Construction Works) and 27-2 (Supervision of Inspection and Supervision of Execution) shall be regarded as a public official in the application of Articles 129 through 132 of the Criminal Act.

Therefore, the Defendant’s supervisor, etc., who is the author of the completion inspection protocol of this case, is merely deemed as a public official only for a bribe-related crime under the Criminal Act according to each of the above legal provisions, and there is no provision on the legal fiction as a public official concerning the preparation of false public documents and the exercise thereof. Thus, it does not constitute a public official as defined in the crime of preparation of false public documents and the

(d) Whether the defendant's preparation of false official documents and the crime of uttering thereof is established;

Therefore, the Defendant, etc., who prepared the instant completion inspection protocol, is a private person who is not a public official, and the person who prepared the instant completion inspection protocol is also a private person, and thus constitutes a private document, not a public document. Even if the Defendant, etc. falsely prepared the instant completion inspection protocol, it is unreasonable to punish the private document, and there is no room for establishing the crime of preparing false public documents and exercising such protocol.

In addition, even though Nonindicted 2 is a public official, it is nothing more than a person who prepared the instant completion inspection report, and even if Nonindicted 2 participated in the preparation of a false completion inspection report of this case by the Defendant, etc., it is nothing more than a person who participated in the intangible

(On the other hand, Non-Indicted 2 signed the protocol of completion inspection of this case, which was attached and received by the Agricultural Technology Center, on the public perusal column formed by the document "the report on the result of completion inspection of the first minute of the IF landscaping project", which was signed by rubber seal. However, the above report document was prepared in the name of representative director of Non-Indicted. 1 Co. 1 Co., Ltd., and received by the Agricultural Technology Center in emulation, and then signed in order with the person in charge, public inspection, approval, discretionary decision, etc. affixed by rubber seal. The above document is deemed to be the Director of the Agricultural Technology Center, the Director of the Agricultural Resources Center, and the Director of the Agricultural Resources Center, the person in charge of public inspection, etc., signed in the process of delivering it to each of the relevant persons, and it is difficult to view that any expression of intention is written. Therefore, it is difficult to evaluate that the report

E. The evidence presented by the prosecutor alone is insufficient to recognize this part of the facts charged, and there is no other evidence to prove this otherwise.

3. Conclusion

Thus, the facts charged against Defendant 3 constitute a case where there is no proof of crime, and thus, is acquitted under the latter part of Article 325 of the Criminal Procedure Act.

Judge Doo-man