Whether a new establishment of Article 84-2 of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents, which is a provision punishing a contractor of a housing redevelopment project, designer, or a specialized management businessman of a rearrangement project, in relation to the selection of a contractor of a housing redevelopment project, etc., should punish an executive of the association as a violation of the Criminal Act or the Act on the Aggravated Punishment, etc. of Specific Crimes under the same Act, which

An officer of a cooperative (hereinafter “cooperative”) who implements a housing redevelopment project or a housing reconstruction project (hereinafter “renovation project, etc.”) under the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (hereinafter “Urban Areas and Dwelling Conditions for Residents”) is deemed a public official for the purpose of applying Article 129 of the Criminal Act, such as the acceptance of bribery (Article 84 of the Act on the Aggravated Punishment, etc. of Specific Crimes). As such, if the acceptance of bribery amount exceeds a certain amount, it shall be subject to aggravated punishment pursuant to Article 2 of the Act on the Aggravated Punishment, etc. of Specific Crimes (hereinafter “Special Crimes Aggravated Punishment Act”). On the other hand, if a person receives money or valuables in relation to the selection of a developer, designer, or a rearrangement project manager, etc., he/she shall be subject to punishment pursuant to Article 84-2 of the Act on the Aggravated Punishment, etc. of Urban Areas and Dwelling Conditions for Residents (hereinafter “Aggravated Punishment”), which is a public official’s agenda for an officer of the cooperative, and is newly established by amendment of the Act.

Articles 1(2) and 129 of the Criminal Act; Article 2 of the Act on the Aggravated Punishment, etc. of Specific Crimes; Articles 11(5), 84, and 84-2 subparag. 1 of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents;

Defendant 1 and one other

Defendants

Law Firm Cheong-do et al.

Busan High Court (Chowon) Decision 2016No4 decided June 15, 2016

All appeals are dismissed.

The grounds of appeal are examined.

1. As to Defendant 1’s ground of appeal

According to the reasoning of the judgment below and the records, the issue of whether accepting a bribe by the defendant is a single criminal defendant or a co-principal who conspired with the head of the association or non-indicted was disputed from the first instance court of this case. On the fifth trial of the court below, the prosecutor and the presiding judge demanded the defendant to present their opinions as to whether the case can be recognized as a single criminal without changing the indictment. In light of such trial progress, etc., without changing the indictment, it is not recognized that the court below acknowledged the defendant as having committed a crime stated in the facts charged in this case as having committed a single criminal act, and thus, there is no concern for any substantial disadvantage in exercising his right of defense.

Examining the reasoning of the lower judgment in light of the evidence duly admitted, the lower court is justifiable to have determined that Defendant 1 was guilty of all charges on the grounds indicated in its reasoning. In so doing, contrary to what is alleged in the grounds of appeal, the lower court did not exhaust all necessary deliberations but did not err by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by misapprehending the legal doctrine on the duty relationship and the necessity of

In addition, Article 84 of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (hereinafter “Urban Improvement Act”) which stipulates that an officer of a reconstruction and improvement project association shall be deemed a public official and Article 2(1) of the Act on the Aggravated Punishment, etc. of Specific Crimes shall not be deemed to be in violation of the Constitution (see, e.g., Supreme Court Decision 2015Do15251, Jan. 14, 2016; Constitutional Court en banc Decision 2013Hun-Ba200, 272, Feb. 26, 2015). The argument that each of the above provisions is unconstitutional is not acceptable.

2. As to Defendant 2’s ground of appeal

An officer of a cooperative (hereinafter “cooperative”) who implements a housing redevelopment project or a housing reconstruction project (hereinafter “renovation project, etc.”) under the Urban Improvement Act is deemed a public official for the purpose of applying Article 129 of the Criminal Act, such as the acceptance of bribery (Article 84 of the Act on the Aggravated Punishment, etc. of Specific Crimes). As such, if the amount of the acceptance of bribery exceeds a certain amount, the punishment is aggravated pursuant to Article 2 of the Act on the Aggravated Punishment, etc. of Specific Crimes (hereinafter “Special Crimes Aggravated Punishment Act”). Meanwhile, if a person receives money in relation to the selection of a developer, designer, or a specialized management businessman of a redevelopment project, etc., he/she shall be punished pursuant to Article 84-2 of the Act on the Aggravated Punishment, etc. of Specific Crimes. This penal provision is revised on February 1, 2012, which is a public official’s agenda provision for an officer of a cooperative, and is newly established on February 1, 2012, compared with the legislative purport of Article 84 of the existing Urban Improvement Act, its applicable scope, and statutory penalty.

In the same purport, the lower court is justifiable to have determined that the instant case is not subject to Article 1(2) of the Criminal Act. Examining the reasoning of the lower judgment in light of the evidence duly admitted, it is justifiable for the lower court to have convicted Defendant 2 of the facts charged on the grounds as indicated in its reasoning. In so doing, contrary to what is alleged in the grounds of appeal, the lower court did not err by misapprehending

3. Conclusion

Therefore, all appeals are dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kwon Soon-il (Presiding Justice)