Defendant

Defendant and Prosecutor

Isleleap

Attorney Kim Jong-young et al.

Changwon District Court Decision 2005Ma836 delivered on October 11, 2005

The judgment of the court below is reversed.

A defendant shall be punished by imprisonment for one year.

34 days of detention before a judgment of the court below is rendered shall be included in the above sentence.

However, the execution of the above punishment shall be suspended for 4 years from the date this judgment became final.

The defendant shall be ordered to provide community service for 150 hours.

20,000,000 won shall be additionally collected from the defendant.

1. Summary of grounds for appeal;

A. Defendant

(1) misunderstanding of facts and misapprehension of legal principles

The lower court found the Defendant guilty on the following grounds by misapprehending the legal doctrine on Article 50(1) and (3) of the Anti-Corruption Act, or by misapprehending the legal doctrine on Article 50(1) and (3) of the Act, and additionally collected KRW 20 million.

(A) The Defendant, as a local council member, was only able to receive expenses for parliamentary activities and travel expenses as stipulated in Article 32 of the former Local Autonomy Act (amended by Act No. 7670 of Aug. 4, 2005; hereinafter the same) at the time of this case, and there is a lot of difference between general public officials in terms of qualifications, appointment, education and training, service, guarantee of status, etc., and thus, does not constitute a public official to whom the Anti-Corruption Act applies.

(B) It was true that the Defendant had received from Nonindicted 1 and the construction of the Busan Cheong-gun and (name omitted) Nonindicted 1 that the budget for the project to improve the flowing water system on the Gyeong-gun (Saeung-gun omitted) Busan Gyeong-gun (hereinafter “the instant land”) in the south River basin of the National river was cultivated, and accordingly, that it would be paid compensation after acquiring the instant land, and re-verification to Nonindicted 2 (name omitted). However, it was not reported or confirmed by the public official in charge in relation to the parliamentary activities within the session of the Busan Cheong-gun, but it was nothing more than about having received the above facts from the public official in charge in connection with the Defendant’s local constituency pending affairs at the private location, and therefore, it cannot be deemed that the Defendant had become aware of such facts in the course of performing his duties.

(C) As part of the project to improve the flow of water for the prevention of flood damage, the plan to purchase the instant land has been frequently discussed during several years in the period of the past, and there was a question that the compensation for the instant land has been granted. In light of the fact that Nonindicted 3, who purchased the instant land, was asked the Defendant to hear this question and first identify the facts, and that the instant land is extremely part of the area where the project to improve the flow of water is to be implemented, and thus there is no possibility that speculative act may occur, it cannot be deemed that the fact that the Cheong-gun would have obtained a budget allocation necessary for the acquisition of the instant land, and that the compensation for the instant land would be carried out immediately after being allocated, is a secret worth protecting the instant land.

(D) 20,000,000 won that the Defendant received from Nonindicted 3 is not itself a pecuniary gain, namely, a gain accruing from the resale, which is not itself, as a result of the crime under Article 50(1) of the Anti-Corruption Act, and thus, the collection of additional tax pursuant to Article 48 of the Criminal Act may not be made pursuant to Article 50(3) of the Anti-Corruption Act,

(2) Unreasonable sentencing

Even if the Defendant was guilty, in light of the fact that the Defendant was able to commit an unexpected act like this case in depth, and that the Defendant donated 20,000,000 won to a social welfare foundation while in office as a member of the U.S. Armed Forces and donated 20,000 won received from Nonindicted 3 to the Defendant, the sentence of imprisonment (one year of imprisonment, four years of suspended execution, community service, 150 hours of additional collection, 20,000 won) imposed by the lower court against the Defendant is too unreasonable.

(b) Prosecutors;

Considering the fact that the defendant should perform his duties fairly as a public official who is a member of the military council, and committed this case for the private interest by taking advantage of his position, considering the fact that there is a need to strictly punish it in light of the legislative intent of the Anti-Corruption Act to establish a clean climate of the public service sector by efficiently regulating the act of corruption of public officials, the sentence imposed by the court below against the defendant is too unreasonable.

2. Determination

A. Judgment on the mistake of facts and misapprehension of legal principles by the defendant

(1) Whether the Defendant, a local council member, constitutes “public officials” under the Anti-Corruption Act

Article 2 subparagraph 2 of the Anti-Corruption Act defines public officials as the heads and employees of public service-related organizations under Article 3 (1) 10 of the Public Service Ethics Act, and those who are recognized as public officials in their qualifications, appointment, education, training, service, remuneration, guarantee of status, etc. under the State Public Officials Act, public officials under the Local Public Officials Act, and other Acts.

On June 13, 2002, the defendant was elected as a member of the Cheongdo Provincial Office from July 10, 2002 to July 9, 2004 during his term of office after being elected as a member of the Cheongdo Provincial Office, which was implemented on June 13, 2002. We examine whether the defendant, a member of the Corruption Act, falls under a public official defined in subparagraph 2 of Article 2 of the Corruption Act. Generally, the term "public official" means a doctor, who is a public official of the State or a public organization, and the State or a public organization, and the public official is in public service relationship. Article 2 (3) of the Local Public Officials Act provides that a member of the 3rd Provincial Office is a public official in political service, and Articles 35 through 37 of the Local Autonomy Act provides that a member of the 2nd local council shall be in charge of various public affairs, and the defendant was not subject to the 9th local council member's regular payment of travel expenses to the 3rd National Public Officials Act.

(2) Whether the Defendant’s information on compensation for the instant land constitutes “confidential” that he/she became aware of in the course of performing his/her duties as a member of the U.S. Armed Forces, under Article 50(1) of the Corruption Act

(A) Article 50(1) of the Anti-Corruption Act provides that a public official shall be punished by imprisonment with prison labor for not more than seven years or by a fine not exceeding 50 million won, if he/she obtains, or causes a third party to obtain, any property or property interest by using any confidential information learned while performing his/her duties.

(B) First, we examine whether the Defendant becomes aware of the information on compensation for the instant land as a member of the U.S. Armed Forces.

In order to do so, the meaning of work should be interpreted as an element for the crime of occupational secrecy under Article 50(1) of the Anti-Corruption Act. According to Articles 1 and 2 of the Anti-Corruption Act, the purpose of the above Act is to contribute to the establishment of a clean climate of public service by efficiently regulating acts of corruption, i.e., abuse of status or authority, or acts in violation of laws and regulations to promote one's own or a third party's interests. Such legislative purpose is in line with the legal interest and protection of the crime of bribery such as fair performance of duty and non-purchase of duties based on trust in society. Thus, the work under Article 50(1) of the Anti-Corruption Act also includes not only the work under the control of law, but also the work closely related to the work, or the work under customs or actual relation with the work of a public official. Whether a specific act falls under the work of a public official is determined in relation to the work of a public official (see Supreme Court Decision 200Do5370, Jun. 1, 2002).

In this case, the defendant as a member of the Busan Cheong-gun Council under the Local Autonomy Act has a proposal right, inquiry right, debate right, voting right, and direct inspection and investigation of the affairs of local governments conducted by the Council, in examining and processing the agenda as a result of the agenda at the plenary session and committees of the Busan Cheong-gun Council under the Local Autonomy Act

On the other hand, the court below can recognize the following facts in full view of the evidence duly examined and adopted by the court below and the testimony of Non-Indicted 1 of the party witness 1.

① Since the instant land is located in the area of the Han River, which is a national river, for a long time, and it has been habitually causing inundation of farmland and housing located in the area of the Sin-Gun, which is the Defendant’s local constituency, by impairing the flow of flowing water of the river for a long time, the residents of the Sin-Gun, Busan-do, filed a lot of civil petitions to prepare countermeasures against it to the Sin-Gun, and on September 2002, the residents of the Sin-Gun filed a civil petition again to the Sin-Gun, Busan-gun, on the grounds that the area of the instant land was within the river of the Han River and caused flood of the said land.

② On October 16, 2002, the Defendant asked Nonindicted 2 of the Busan Cheong-gun (name omitted) in charge of disaster prevention duties on the administrative affairs audit of the Cheong-gun of the Busan Cheong-gun, which was conducted on October 16, 2002, about the project to improve the inflow of flowing water on the instant land where the pending issues of his local constituency were located. From Nonindicted 2, the Defendant asked Nonindicted 2 to the Central Disaster Management Headquarters for the river incorporation of the instant land, including the instant land, on the part of the project to recover damage caused by typhoon dust and habitual flooding, and the project to improve the inflow of flowing water on the instant land, and applied for a budget for the river incorporation of the instant land that obstructs several flowing water flow, including the instant land, and failed to allocate the budget for the project to improve the inflow of flowing water on the instant land.

③ From time to time, the Defendant began to seek from Nonindicted 2 and Cheongsi-gun Construction, and Nonindicted 1, who are (name omitted), whether the budget was allocated to incorporate and compensate for the instant land into the river.

④ The Ministry of Construction and Transportation, which received orders from the Central Disaster Countermeasures Headquarters due to efforts to secure the budget of the Si/Gun, notified the Ministry of Construction and Transportation to cultivate the budget required for the projects to improve the flowing water flow in the habitual flooded area, which was omitted prior to the construction of the Si/Gun, around November 2002.

⑤ Around that time, the Defendant found Nonindicted 1, as in the process of inquiring about whether to convert the instant land into a river or whether to allocate a budget for compensating for the transfer of the instant land into a river, and again confirmed that Nonindicted 1 and Nonindicted 2 were allocated a budget for the acquisition of the instant land as above, as seen earlier, and again, confirmed this again to Nonindicted 2. The reason why Nonindicted 1 and Nonindicted 2, at the time, informed the Defendant of the foregoing information was that the Defendant was a military soldier whose area was located in the area where the Si/Gun was located in the U.S., and that the Defendant was thought to be naturally aware

However, according to the above facts, the defendant was aware that the public official in charge of the Si/Gun visited the Si/Gun office individually outside the session, not the process of adopting a resolution on the bill during the session of the Si/Gun pursuant to the Local Autonomy Act or conducting an administrative affairs audit or investigation, and that the budget allocation for the project of improving the flowing water of the land of this case would be carried out, and thus, it cannot be deemed that the above information was known in the course of carrying out the project of obtaining compensation procedures under the Local Autonomy Act. However, the defendant's act of including the land of this case into the Si/Gun and smooth flow of flowing water was the regional pending issue at the time, and the defendant was individually informed of the necessity of raising the flowing water of this case's budget for the improvement of the flowing water of this case's land of this case's case's case's case's case's case's case's case's case's case of including the river's case's case's case's case's case's case's case's case of incorporation into the river's case's case's local government.

(C) Next, we examine whether the compensation information on the instant land that the Defendant came to know constitutes “confidential” or not.

The term “confidential” under Article 50(1) of the Anti-Corruption Act includes not only the matters specified as confidential or classified as confidential under the statutes, but also matters of considerable interest that the government, public offices, or citizens cannot be disclosed from an objective and general point of view, as well as matters that are classified as confidential or confidential depending on political, military, diplomatic, economic, and social needs (see Supreme Court Decision 2002Do739, Dec. 26, 2003). However, it should be recognized that it is worth protecting it as confidential (see Supreme Court Decision 2002Do7339, Dec. 2

In light of the following circumstances acknowledged by the lower court’s duly adopted evidence, ① the project to improve flowing water in the manner of incorporating the instant land into a river, i.e., the lower court’s 20th anniversary of the fact that the instant land was habitually flooded, it was an important factor to ensure the commencement of the said project, as it was impossible to do so until November 202 to allocate the budget for the said project, and ② Nonindicted 1 and 2 were informed of the fact that the budget for the acquisition of the instant land was cultivated by the Ministry of Construction and Transportation around November 202 before being notified of the fact that the instant land was newly acquired by Nonindicted 30, and that there was no possibility of acquisition of the instant land from the 20th anniversary of its initial acquisition by Nonindicted 5’s acquisition of the instant land, and that there was no possibility of acquisition of the instant land from the 20th anniversary of its initial acquisition by the Ministry of Construction and Transportation to the Defendant’s purchase of the instant land at the price of the instant land, such as the purchase of the instant land at the price of the land.

(3) Whether the Defendant’s KRW 20,000,000 received from Nonindicted 3 is subject to additional collection under Article 50(3) of the Anti-Corruption Act

Article 50(3) of the Prevention of Corruption Act provides that a person who commits a crime under paragraph (1) or a third party who knows the fact thereof may confiscate or collect the property or property benefits acquired from the crime under paragraph (1). According to the prosecutorial statement (in page 1728 of the Investigation Records) of the evidence legitimately examined and adopted by the court below, Non-Indicted 3 purchased the land of this case from Non-Indicted 4 through his brokerage after hearing the fact that it was planned to acquire the land of this case and pay compensation from Non-Indicted 4 after cultivating the budget for the improvement project for the improvement of the inflow of the flowing water of this case from the defendant, and after selling it to Busan-gun for the benefit of KRW 85,059,000, the defendant paid KRW 200,000 at the expense of the case.

In light of the fact that Article 50(3) of the Anti-Corruption Act provides that public officials shall be deprived of property or property benefits acquired in an improper way by using confidential information that they came to know in the course of performing their duties, it is reasonable to interpret that the subject of confiscation and collection under the above provision include not only property or property benefits acquired directly by a public official, but also property or property benefits acquired in return for the acquisition of property or property benefits acquired by a third party as well as property or property benefits acquired by a public official. Thus, it is legitimate for the court below to additionally collect 20 million won from the defendant. Accordingly, this part of the defendant's assertion is without merit.

B. Ex officio determination

Before examining the Defendant and the prosecutor’s assertion of unreasonable sentencing, the records show that the Defendant was detained on September 1, 2005, and the Defendant was released on October 4, 2005 upon receiving a decision to suspend the execution of detention from the branch court of the Changwon District Court. Thus, the lower court should include 34 days of pre-trial detention against the Defendant (from September 1, 2005 to October 4, 2005) as the number of pre-trial detention days (from September 1, 2005 to October 4, 2005), but did not contain only 33 days of pre-trial detention days. In this regard, the lower court’s judgment cannot be

3. Conclusion

Therefore, the judgment of the court below is reversed, and it is again decided as follows.

The summary of the facts constituting the crime and the evidence acknowledged by this court is cited as it is, in addition to the fact-finding of the judgment of the court below's second instance, " around November 2003" as " around November 2002," since it is the same as the corresponding column of the judgment of the court below, in addition to the fact-finding of the court below's second instance.

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

Article 50 (1) of the Prevention of Corruption Act (Appointment of Imprisonment)

1. Calculation of days of detention;

Article 57 of the Criminal Act

1. Suspension of execution;

Article 62(1) of the Criminal Act

1. Social services;

Article 62-2 (1) of the Criminal Act

1. Additional collection:

Article 50(3) of the Anti-Corruption Act

Although the criminal defendant's act of committing an act of committing an act of committing an act of committing an act of committing an act of committing an act of committing an act of committing an act of causing about 85,00,000 won by allowing non-indicted 3 to purchase the land of this case scheduled to proceed with compensation procedures following the incorporation into a river, using the information he was aware of his position as a public official, and by using the information he was aware of in the course of performing his duties, it is not good that the criminal defendant committed the act of committing an act of committing an act of committing an act of committing an act of committing an act of committing an act of committing an act of committing an act of committing an act of committing an act of committing an act of committing an act of committing an act of committing an act of committing an act of committing an act of committing an act of committing an act of committing more than once taking into account the fact that the criminal defendant's health status is not good, the suspended sentence shall be imposed for a longer period of time, considering the nature of the crime of this case.

Judges Yoon Tae-tae (Presiding Judge)