A. Violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (Bribery)

Name of crime: Acceptance of Misappropriation

(b) Offering of bribe;

1. A.

2.(a) B

3.(a) C

4.(a) D.

5.(b) E.

Prosecutor

Kim Jong-tae (prosecution) and a trial of a rank;

Law Firm F, Attorneys G and AL (for Defendant A)

Law Firm H, Attorneys I and AM (Defendant B)

Attorney AI (the central office for the defendant C)

Attorney K (for defendant D)

Attorney J (Court of First Instance for Defendant E)

Busan District Court Decision 2014Gohap216 Decided August 8, 2014

Busan High Court Decision 2014No578 decided December 18, 2014

Supreme Court Decision 2015Do576 Decided June 10, 2016

December 15, 2016

The judgment of the court below is reversed.

Defendant A and B shall be punished by imprisonment for 5 years, by imprisonment for 3 years and 6 months, and by imprisonment for 2 years, respectively.

87,50,000 won each from Defendant A and B, and 12,50,000 won each from Defendant C and D shall be collected respectively.

Defendant A, B, C, and D shall be ordered to pay an amount equivalent to the above additional collection charges.

1. Summary of grounds for appeal - Prosecutor

The lower court found Defendant A, B, C, and D not guilty of the facts charged of bribery and grant of the Defendants on the erroneous premise that the revocation of the authorization for establishment of an association under Article 16-2(1) of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (hereinafter referred to as the “Urban Improvement Act”) is retroactive.

However, such judgment of the court below is erroneous in the misunderstanding of legal principles as to the validity of revocation of the authorization for establishment of an association under Article 16-2 (1) of the Urban Improvement Act.

2. Determination

A. Legal doctrine

The revocation of an administrative act is a separate administrative disposition extinguishing the validity of an administrative act retroactively on the ground of an illegal or unreasonable defect. The withdrawal of an administrative act is an administrative disposition extinguishing all or part of the validity of the administrative act ex post facto, which has a complete effect upon meeting the lawful requirements. Therefore, the revocation of an administrative act refers to the defect that existed at the time of the establishment of the administrative act, and the grounds for revocation refers to a new occurrence after the administrative act was constituted, which means a ground for revocation, which means a ground for which the validity of the administrative act cannot be sustained (see, e.g., Supreme Court Decisions 2003Da6422, May 30, 2003; 2003Da37969, May 11, 2006; 2012Du1959, Oct. 27, 2014).

Meanwhile, Article 16-2 (1) of the Urban Improvement Act provides that the head of a Si/Gun shall cancel the approval of the promotion committee or the authorization of the establishment of an association when he/she files an application for dissolution of the promotion committee with consent of more than the ratio prescribed by City/Do Ordinance or with consent of more than a majority of the owners of land, etc. who have consented to the organization of the promotion committee within the scope of not less than 1/2 and not more than 2/3 (Article 16-2 (1) of the Act, when he/she applies for dissolution of the promotion committee with consent of more than the ratio prescribed by City/Do Ordinance of not less than 1/2 and not more than 2/3 of the members who have consented to the establishment of the promotion committee or with consent of more than a majority of the owners of land, etc. who have consented to the establishment of the promotion committee (Article 4-3).

(b) facts admitted by relevant evidence.

① From May 2005, Defendant A worked as the chairperson of the committee of promotion for housing redevelopment of members of the Busan Northern-gu Ma, and was elected as the head of the association of the Nan District Housing Redevelopment Improvement Project (hereinafter “instant association”) on January 27, 2007 at its inaugural general meeting. Defendant B, C, and D were elected as the directors of the instant association at its inaugural general meeting on January 27, 2007.

② On April 9, 2007, the head of the Busan Metropolitan City North Korea issued a disposition to authorize the establishment of the instant association. On April 16, 2007, Defendant A was registered as the president of the instant association, Defendant B, C, and D as a director of the instant association.

③ On May 28, 2013, on the ground that a majority of the owners of land, etc. consented to the dissolution of the instant association, the head of the Busan Metropolitan City North Korea cancelled the disposition of authorization to establish the instant association pursuant to Article 16-2(1) of the Urban Improvement Act, and abolished the authorization to implement the project on the same day due to the absence of project proprietor

④ Meanwhile, Defendant A, B, C, and D received money and valuables from Defendant E on five occasions from January 3, 2007 to February 25, 2008 in relation to the selection of the removal service provider as described in the pertinent facts charged.

C. Sub-committee

In light of the above facts in light of the legal principles as seen earlier, although the establishment authorization disposition against the association of this case was revoked pursuant to Article 16-2 (1) of the Urban Improvement Act, the establishment authorization disposition does not lose its retroactive effect as at the time of the disposition, but does not lose its future effect. Thus, the association of this case is valid before the cancellation of the establishment authorization disposition under Article 16-2 (1) of the Urban Improvement Act without any need to determine whether the establishment authorization disposition against the association of this case should be treated equally as invalid. Accordingly, it is reasonable to deem that Defendant A, B, C, and D are officers of the association deemed public officials in the application of Articles 129 through 132 of the Criminal Act under Article 84 of the former Urban Improvement Act. Thus, the prosecutor's grounds for appeal are with merit.

In addition, the prosecutor added Article 33 of the Criminal Act to the primary applicable provisions to Defendant B in the trial after remand, and the first head of the primary charge "the person who is deemed a public official under the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents" was the chairman of the promotion committee for the establishment of the above partnership and the person who is deemed a public official under the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents, and the officers of the above partnership, and Defendant B, Defendant C, and Defendant D were the officers of the above partnership, and the person who is deemed a public official under the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents, as the public official under the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents." The above application was filed by the court and the above application was modified.

3. Conclusion

Therefore, the judgment of the court below is reversed, and the judgment is again rendered as follows (Article 364(2) and (6) of the Criminal Procedure Act).

Criminal facts

From May 2005, Defendant A worked as the chairperson of the promotion committee for housing redevelopment in Busan Northern-gu M (area 32,876m, total amount of 588 generation) from around January 27, 2007, and was elected as the president of the instant association around January 27, 2007, and was registered as the president of the association around April 16, 2007, and was in charge of the overall affairs of the association until the partnership is dissolved by revocation of authorization for the establishment.

Defendant B, from April 16, 2007 to May 28, 2013, was in charge of managing members of the instant association and accounting and accounting and accounting of the association.

Defendant C and D were in charge of participating in the important decision-making of the instant association as a director of the instant association from April 16, 2007 to May 28, 2013 and managing its members.

On July 20, 2007, Defendant E is the 0 representative director of the removal service company, which was selected as the removal service company of the above NND redevelopment project and entered into a contract for the removal of building structures and the remaining disposal work with the partnership.

Defendant A is the chairman of the promotion committee for the establishment of the above partnership and a person who is deemed a public official under the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents. Defendant B, Defendant C and Defendant D are the officers of the above partnership, who are deemed public officials under the Act on the Maintenance and Improvement of Urban Areas

Defendant A and B’s co-principal

In January 2007, the Defendants consulted with each other so that they can be selected as the removal service company of the Nan District Housing Redevelopment Project, and agreed to provide convenience at the time of the progress of construction from the 0 representative director E of the corporation, which was selected as the removal service company of the Nan District Housing Redevelopment Project, to the head of the partnership office located in the Busan Northern District P, in order to participate in the bidding of the removal service company of the above E in the course of the bidding of the removal service company supervised by the partnership, and to receive a total of KRW 200,000,000,000,000,000,000,000,000 won from the 0 representative director E of the corporation, which was selected as the removal service company of the Qan District redevelopment Project.

On January 3 to 4, 2007, the Defendants received KRW 50 million in cash as the price for the selection of the removal service company from the above E in the mutual influent coffee shop located in front of the Busan Busan District Court.

The Defendants conspired to do so and received a bribe in relation to the duties of public officials by receiving a total of KRW 150 million from the above E in the name of the cost of selecting the removal service company from three times, such as the No. 1 to 3 of the list of offenses, from May 11, 2007.

2. Joint principal offenders committed by Defendant A, B, C, and D

Defendant A and B, upon receiving the same solicitation as described in paragraph (1) from the above E, accepted it, and around June 2007, Defendant C and D accepted this solicitation, the instant association, “as the director of the instant association, in the process of selecting the removal service company, intended to assist the said company to be selected as the removal service company. The amount of KRW 50 million was reduced in return for the said company. The amount of KRW 50 million received from the said company is divided equally, and Defendant C and D accepted it.”

On June 2007, the Defendants, at the above partnership office, selected O as a removal service company at the general meeting of the partnership around July 20, 2007, by exercising their voting rights to select the corporation as a removal service company when the board of directors makes a resolution on the selection of removal service company.

On August 14, 2007, the Defendants received a total of KRW 40 million from the above E in terms of the consideration for the selection of the removal service provider at the SS restaurant, which is an exclusive model store in the vicinity of the Busan Northern-gu, Busan, and received a total of KRW 40 million from the above E in terms of the consideration for the selection of the removal service provider.

The Defendants conspired to do so from that time until February 25, 2008, and received a total of KRW 50 million from the above E in consideration of the selection of the removal service company, such as the No. 4 and No. 5 of the list of offenses, from that time until February 25, 2008, and received a bribe in connection with their duties.

3 Defendant E.

From January 3 through February 4, 2007 to February 25, 2008, the Defendant offered a bribe in relation to the official duties of the public official by providing five hundred million won as shown in the attached list of crimes, upon soliciting that the director of the corporation he/she operated to A, B, C, and D may be selected as a removal service company of the Nan District Housing Redevelopment Project, as described in paragraphs (1), (2).

Summary of Evidence

1. The original judgment of Defendant A and the legal statement of Defendant B, C, and D, and part of the original judgment of Defendant B, C, and D, and the legal professionals of the original judgment

1. The witness E and A’s legal statement in the original trial and the witness B’s legal statement in the original trial;

1. Statement made by each prosecutor's office of A, E, B, C, and D;

1. Each investigation report (in addition to the N District Busan Metropolitan City public notice, etc., authorization for establishment of the N District Housing Redevelopment Project Association, revocation thereof, related data, such as association register, district to be rearranged, rearrangement zone, improvement zone and improvement plan, public notice and topographic drawings, list of partnership officers and representatives, details of transactions, etc. of single bank, tracking of accounts, such as check tracking, etc., verification of facts, results of 10 copies of checks used as bribe funds, copy of the stenographic records of the inaugural general meeting of the N District Housing Redevelopment Project Association, details of distribution of

1. A bribe payer E mobile phone storage file analysis report, five copies of KRW 10 million check issued by the National Bank on May 10, 2007, one copy of KRW 10 million check issued at the salary-dong branch of the New Bank on February 19, 2008, one copy of KRW 10 million check issued at the salary-dong branch of the New Bank on February 19, 2008, the details of the Agricultural Bank Account, and the detailed statement of KRW 10 million on August 28, 2007, shall apply to the Acts and subordinate statutes governing the transactions of non-payment of cash.

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

○ Defendant A and B: Article 2(1)1 of the Act on the Aggravated Punishment, etc. of Specific Crimes; Article 129 of the Criminal Act; Article 84 of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents; Article 30 of the Criminal Act [In general, the punishment of imprisonment shall be selected; however, the upper limit of imprisonment shall be 15 years pursuant to the main sentence of Article 42 of the former Criminal Act. Meanwhile, Defendant B’s act of taking part in the crime Nos. 1 and 2 of the annexed crime list of crimes committed by Defendant B is processed to a crime established due to their status relationship, and a person who has no status relationship is liable for co-principal (see, e.g., Supreme Court Decision 2009Do885, Sept. 30, 2010). Accordingly, Defendant B also takes responsibility as a co-principal; and

○ Defendant C and D: Article 2(1)2 of the Act on the Aggravated Punishment, etc. of Specific Crimes; Article 129 of the Criminal Act; Article 84 of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents; Article 30 of the Criminal Act (generally, the maximum of imprisonment

The 15-year period under the main sentence of Article 42 of the former Criminal Act)

○ Defendant E: Articles 133(1) and 129(1) of the Criminal Act, Article 84 of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (Generally, Selection of Imprisonment)

1. Discretionary mitigation of Defendant A, B, C, and D;

Articles 53 and 55(1)3 of the Criminal Code (The following favorable circumstances):

1. Additional collection against Defendant A, B, C, and D

The latter part of Article 357(3) of the Criminal Code (the basis for calculating the amount of collection: based on the amount of the accepted acceptance distributed to the above Defendants, and the defendant A, the defendant C, and the defendant C, respectively, KRW 12.5 million)

1. The order of provisional payment to Defendant A, B, C, and D;

Article 334(1) of the Criminal Procedure Act

Judgment on the assertion of Defendant B, C, D and their defense counsel

(1) Claims

Defendant B, C, and D, as a part-time director of a union, are merely aiding and abetting in light of the details and degree of the participation in the instant crime, and even if deemed otherwise, the joint principal liability should be recognized only for the amount received by the above Defendants (the amount of KRW 37.5 million, excluding the amount of KRW 87.5 million or the amount of KRW 17.5 million, excluding the amount of KRW 2, 37.5 million, Defendant C, and D: each of KRW 12.5 million).

(2) Judgment

A Relevant legal principles

In relation to co-offenders who are co-processed with two or more persons in a crime, the conspiracy does not require any legal penalty, but is only a combination of intent to realize a crime through joint processing of crimes by two or more persons. Although there is no process of the whole conspiracy, if the combination of intent is made in order or impliedly through several persons even though there is no process of the whole conspiracy, a conspiracy relationship is established (see, e.g., Supreme Court Decision 201Do9721, Dec. 22, 2011). Meanwhile, Article 30 of the Criminal Act is established by satisfying the subjective and objective requirements of criminal practice through functional control over the crime by the intent of joint processing and its common intent. Even if some of the co-offenders fail to directly share part of the constituent acts, if it is recognized that there exists a functional control over the crime by taking into account the status, role, control over the progress of the crime, etc., and if it is not a mere conspiracy but a functional control over the essential act through an essential contribution to the crime, it cannot be exempt from the so-called co-principal liability (see, 2007.

Facts admitted by the evidence mentioned above

① In the instant association, Defendant A was the president of the association, Defendant B was the director in charge of accounting and accounting, and Defendant C and D were the directors.

② At around January 2007, Defendant A and B conspired with each other to select Defendant E as the representative director of the partnership office (hereinafter referred to as “the Plaintiff”) and to provide convenience at the time of the progress of the construction work at the request of Defendant E, the representative director of the partnership office, to participate in the bidding process of the removal service company supervised by the partnership in the future. At the bidding process of the removal service company supervised by the partnership, only the two companies Defendant E are selected as the removal service company by the method of bidding at the minimum bidding price from the 0 side, and to receive a total of KRW 200 million in return for this.

③ Accordingly, Defendant A and B received three times more than KRW 150 million, as described in [Attachment 1, 2, and 3] No later than the date of his appointment as the removal company, and divided the amount of KRW 75 million into two parts.

④ At around June 2007, Defendant A and B proposed that Defendant C and D, a director of the partnership, “I will be selected as a removal service provider.” At the same time, Defendant C and D accepted the proposal that “I will be divided equally, if I will receive KRW 50 million from the company.”

⑤ Accordingly, around July 20, 2007, at the general meeting of the partnership, the company was selected as the removal company upon the motion of the defendant A, B, C, and D, who is an executive of the union, to be the removal company.

④ On August 14, 2007, Defendant A, C, and D provided meals to Defendant E, and received KRW 40 million in return for the answer to the selected goods as the removal company, and divided KRW 10 million per each party. After which, around February 25, 2008, KRW 10 million was received from each party and then divided KRW 2.5 million per each party.

(C) Sub-decisions

Considering the above legal principles and facts, it is sufficient to view that Defendant B conspiredd with Defendant A to commit the instant crime at the beginning, and Defendant C and D came to joint criminal conduct with Defendant A and B through functional control with the intent to jointly process the crime, recognizing their criminal conduct according to the proposal of Defendant A and B. In addition, insofar as the said Defendants become joint principal offenders of the instant crime, the amount acquired by the said Defendants, separate from the amount distributed by each of the said Defendants, constitutes the amount of bribery.

Therefore, Defendant B, C, and D’s above assertion are without merit.

Reasons for sentencing

Defendant A, B, C, and D did not have any previous charge, and they did not have any criminal history exceeding the fine imposed on Defendant A and D, and Defendant B and C were the primary offenders; Defendant B and C were divided and reflected as they appear; and Defendant A returned KRW 48 million to the donor and Defendant B used it for the donor or used it for the donor, among the received money, each of the above Defendants’ punishment periods shall be set at the lowest sentence of punishment.

○ Defendant E

[Extent of Recommendation] Type 4 (at least 100 million won) Basic Area (at least two years to six months) for the offer of a bribe

[Determination of sentence] The sentence against Defendant E shall be sentenced to a minor sentence of two years, below the minimum sentencing guidelines, taking into account the circumstances favorable or unfavorable to Defendant E, and other various sentencing conditions shown in the argument of this case, such as the age, character and conduct, environment, motive, means and consequence of the crime, and the circumstances after the crime.

D. Unfavorable circumstances: A favorable circumstance, such as the fact that the nature of the crime of this case committed by the Defendant A, etc., who is deemed a public official, in solicitation of the request to be selected as a station for the removal of the N District Housing Redevelopment Improvement Project; the fact that the crime of this case committed by the Defendant A, etc., who is deemed a public official, is not against the law, such as the fact that the nature of the crime of this case committed by the Defendant A, etc., who is deemed to be a public official; the fact that the Defendant E, even though recognized as a substitute for one’s own crime, still remains in the trial since the investigative agency, is maintained in the case of some of the money: the fact that the investigation of this case was commenced by the information of the Defendant E; and that Defendant E seems to be against the law by recognizing it as a substitute

The presiding judge, the senior judge;

Judges

Judge Lee Ro-hoon

A person shall be appointed.