2016Gohap1074 Violation of the Act on the Aggravated Punishment, etc. of Specific Crimes

A

Park Ho-ho (Court) and Kim Jong-ho (Court of Justice)

Attorney B, C, D

e. Law firm F

Law Firm G, Attorney in charge H

February 17, 2017

A defendant shall be punished by imprisonment for not less than one year and six months.

10,000,000 won shall be additionally collected from the defendant.

Criminal facts

1. The Defendant and related persons, from March 4, 2008 to January 11, 2009, were in office as the chief of the Ministry of National Defense division from March 4, 2008 to January 11, 2009, discharged from military service on December 31, 201, and served as K managing director, a defense contractor, from January 1, 201 to January 11, 2015, and from January 17, 201.

L is a representative director of M Co., Ltd. (hereinafter referred to as "M") who is a non-militaryization company, and is engaged in non-militaryization projects such as entering into a contract for non-militaryization services with the NN implementing agency around February 2012.

2. 0 Aid materials for and received in connection with non-militaryization projects;

Around August 2012, the Defendant, introduced L through the Grand Order P, which belongs to the Ministry of National Defense, which is the latter ship, requested L to pay money to L, “I would like to support LIgn's business in the GIg because there are many people who know about the scope of military connection. However, in order to support LIg's business, how I think it is necessary to pay a military personnel with meals, drinking, and pay golf?” The Defendant agreed to receive money as a solicitation cost related to the militaryization project by L I, with the consent of L I.

At around November 2012, the Defendant: “I see that I will be able to conduct joint research with Q Research Institute or receive subcontracting from Q Research Institute in a research project ordered by the Defense Acquisition Program Administration through motive, etc.”; “I would like to enable M to receive well evaluation points even through a person in charge of the Defense Acquisition Program Administration; “I would like to secure sufficient budget each year and request the person in charge to pay 30,000 won for the disposal quantity promised; “I would like to reflect the budget for the non-militaryization sector conducted in M in the mid- and long-term plan of the military”; “I would need to pay money for solicitation expenses to military personnel; and accordingly, I received money from the Defendant L and 30 million won in cash within the parking lot in Yongsan-gu Seoul Metropolitan City, Yongsan-gu around December 7, 2012.”

As a result, the defendant received 30 million won as to the referral of matters belonging to public officials' duties.

3. Arrangement and taking measures in relation to solicitation for promotion to the army;

(a) Acceptance of KRW 20 million on or around July 2013;

The defendant, on June 2013 to July, 2013, is the incumbent Ivoking P, who works for the Department 0 related to the Ministry of National Defense, "If there is the head of the subsequent Gun, it may be the commander of this Gun. It may be possible to see in advance the information about what 0 will be born. The head of the Gun may prepare for the project in the land or the Ministry of National Defense. If the director considers 00 to take an action, he may proceed with the project in the future, and if he is promoted to the head of the Gun, he may receive the information about the director in advance and prepare for the project in question, so he may be an equal opportunity for 0 days in the future, "I may have several heads of the Guns during the I East 0th century, and there are many other heads of Guns, who will be more than 00 Guns and 10 Guns's own money for the purpose of parking, and it shall be promoted to 00 Guns and 200 Guns's own money.

(b) Acceptance of KRW 10 million around June 2014;

On May 18, 2014, the Defendant heard that Lives Lives that Lives would be able to bear the solicitation cost by stating that “I would no longer have to proceed once to the promotion of the head-Gun.” Accordingly, Lives would receive KRW 10 million in cash as a solicitation cost for the promotion of P’s head-Gun, located in Daejeon Dong-gu T, Daejeon, around June 18, 2014.

(c) Acceptance of KRW 20 million around July 2015;

On June 14, 2015, the Defendant stated that L, in relation to the promotion of the above P, “I will be subject to examination for the promotion of the P group thereafter,” and accordingly, from L, the Defendant was granted KRW 20 million in cash in consideration of the solicitation expenses for the promotion of P group at L, which is located at V at the window of Changwon-si, Changwon-si around July 14, 2015.

D. Sub-committee

As a result, the defendant received 50 million won as to the referral of matters belonging to public officials' duties.

4. Materials for mediation or acceptance in relation to solicitation for the National Assembly members;

(a) Acceptance of KRW 10 million on or around September 2015;

On February 2015, the Defendant referred to as a explosion related to M’s non-militaryization services at an interview at the press and referred to it as a problem. On August 2015, the Defendant heard L and her friend with L in the process of confirming the factual relationship against the related parties such as L and so that L will not go beyond the Board of Audit and Inspection because it is well known to the members of the National Assembly. On the other hand, I would like not to go beyond the Board of Audit and Inspection. I would like to say, “I will not be an issue whether I will be the position to be subject to the direction of a member of the National Assembly.” Accordingly, I received from L on September 3, 2015, cash 10 million won in consideration of solicitation expenses against the member of the National Assembly.”

(b) Acceptance of KRW 20 million around September 2015;

around September 2015, the Defendant requested L to her at the Incheon Mapo-gu Hospital for 2015 that “I would not have been able to have her fluencing with a member of the National Assembly. I would need to meet that person and her member of the National Assembly. I would need to meet with her member of the National Assembly.” Accordingly, the Defendant demanded L to pay money for one solicitation fee against the member of the National Assembly. Accordingly, around September 23, 2015, the Defendant received KRW 20 million in cash from her coffee shop in Seoul Mapo-gu AB hotel.

C. Sub-committee

As a result, the Defendant received 30 million won as to the referral of matters belonging to the duties of public officials.

Summary of Evidence

1. Partial statement of the defendant;

1. Statements made by witnesses L and AC in the first trial records;

1. Two times, three times, and four times each prosecutor's protocol of examination of the accused;

1. Statement made by the prosecution against AD;

1. 수사보고(A에 대한 금품교부 관련 일시·장소 확인], 2012.12.7. 농협카드결재내역(3천만원 관련), '용산역' 위치 관련 네이버지도 출력물, 2013.7.2. ~ 7.21. 농협카드결 재내역(2013.7.18. 2천만원), 'S' 위치 관련 네이버지도 출력물, 2014.6.17 ~ 6.18. 농협카드 결재내역(2014.6.18. 천만원), 2014.6.18. L 휴대폰 문자메세지 출력물, 'U' 위치 관련 네이버지도 출력물, 2015.9.3. 농협카드 결재(1,000만원 관련), 2015.9.3. 통화내역 정리, 2015.9.3. L의 휴대전화 문자메세지 출력물, 'Z' 위치 관련 네이버지도 출력물, 2015.9.23~9.24. 카드 결재내역(2,000만원 관련), 2015.9.23.~9.24. 통화내역 정리물, 'AB호텔' 위치 관련 네이버지도 출력물, 수사보고[2012년~2015년 N추진기관 위탁처리 용역계약서등 첨부], 2012년 0 추진기관 위탁처리용역에 따른 계약 관련서류, 0 추진기관 위탁처리 용역에 따른 선급금 신청 문서(2012.2.8.), 2013년 0 추진기관 위탁처리용역 계약관련 서류, 2014년 이 추진기관 위탁처리용역 계약관련 서류, 2015년 0 추진기관 위탁처리용역 계약관련 서류, 수사보고[P 대령의 장군 진급 심사대상 기간 확인, 약식자료표(P), 수사보고[135기 장성급 인사 명단 및 2010년~ 2015년 준장진급 심사위원 명단 확인, 수사자료 제공 요청 회신(135기 장성급 인사 명단 및 2010년 2015년 장성진급심사위원 명단), 수사보고[L와 A 사이의 통화내역 확인 보고], 통화내역 정리(L, AE-A, AF), 통화내역 정리(L, AE-A, AG), 통화내역 정리(L, AEA, AH), 통화내역 정리(A, AF-IL AE), 통화내역 정리(A, AG-L AE), 통화내역 정리(A, AH L AE), AI, AJ에 대한 통신자료제공요청 및 회신내역, '방산비리관련(2015.2.11.)' 질의서, 'N 비군사화(국방부)' 질의서 1부, 수사보고[L와 A의 통화내역 확인 2015년 9월 23일], L-A의 통화 내역 정리물, L와 A의 'AB호텔 근처 발신통화내역 정리물, M 농협카드(끝자리 AK) 결재내역서, X호텔 사실확인서, 창원시 의창구청 '관광 사업 휴업 신고수리 알림' 공문, ㈜K의 2015년 A 출장내역 2부, ㈜K 하나SK카드(끝자리 AL) 결재내역(2015. 7. 14.분), 창원 중앙역에서 W호텔까지 네이버 지도 검색 내역, W호텔에서 한화테크윈까지 네이버지도 검색 내역, 창원시청 홈페이지 게시된 창원 택시 운임요금 검색 내역, L-A 통화 내역(2015.7.13~14), ㈜AM 명의 계좌거래내역, L가 사용하는 SM-G920S 문자내역 발췌본, A(AN)와 주고받은 문자내역 발췌본, A(AF)와 주고받은 문자내역 발췌본, A0과의 카카오톡 대화내용 발췌본

Application of Statutes

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

Article 3 of the Act on the Aggravated Punishment, etc. of Specific Crimes and Selection of Imprisonment

1. Aggravation for concurrent crimes;

Article 37 (Aggravation of Concurrent Punishment, etc. of Specific Crimes (Concurrent Punishment, etc. of Act on the Aggravated Punishment, etc. of Specific Crimes and Concurrent Punishment, etc. of Specific Crimes concerning Requests for Promotion to the Armed Forces with the largest number of crimes) Articles 38 (1) 2 and 50

1. Additional collection:

Article 13 of the Act on the Aggravated Punishment, etc. of Specific Crimes

Judgment on the argument of the defendant and defense counsel

1. The assertion;

A. In relation to the crime Nos. 2 and 3 in the holding, the Defendant received a total of KRW 80 million in return for the performance of advisory or advisory services against L and M, and does not receive it in return for the act of corruption as stated in its holding.

B. In the case of paragraph (3) of the criminal facts in the judgment, matters belonging to the duties of public officials are not specified. If the name of receiving money and valuables in the facts charged is the name of solicitation expenses related to the promotion of the defendant's future distribution group, it does not constitute "mediation" under Article 3 of the Act on the Aggravated Punishment, etc. of Specific Crimes with the referral for a third party, other than the client, and if the name of receiving money and valuables in the facts charged is the name of the referral for the 0-militaryization project, the relationship between the promotion of the defendant's future distribution group and the convenience of the 0-militaryization project merely

C. In the case of paragraph (4) of the ruling, the member of the National Assembly is not a member of the Board of Audit and Inspection which belongs to public officials' duties.

2. Determination

A. Determination on the pretext of giving and receiving money under paragraphs 2 and 3 of the crime facts stated in the judgment

1) Relevant legal principles

Whether there exists a quid pro quo relationship between a broker and a beneficiary of a public official’s duties shall be determined by comprehensively taking into account all the circumstances, such as the contents of the relevant good offices, whether there is a friendly relationship between the broker and a beneficiary, the details and timing of receiving benefits, etc. However, there is sufficient overall and comprehensive quid pro quo relationship between the broker and the beneficiary. Furthermore, in cases where the nature of the quid pro quo as a consideration for an advance to know and other acts are indivisiblely combined with the money received by the broker, it is reasonable to deem that the entire quid pro quo has the nature of quid pro quo for an indivisible act (see, e.g., Supreme Court Decision 2013Do6570, Sept.

2) Determination

The most direct evidence that corresponds to the fact that the name of receiving money under paragraphs 2 and 3 of the facts constituting the crime in the judgment corresponds to the pretext of solicitation expenses related to 0 non-militaryization projects or promotional solicitation expenses for P, as stated in the above facts constituting the crime. As examined below, L's statement is credibility as examined below. According to the statement, L's statement can be acknowledged as the name of the defendant's solicitation expenses related to non-militaryization projects or the cost of solicitation for promotion to the head of P, and it can be recognized as the name of the defendant's solicitation expenses related to non-militaryization projects or the cost of solicitation for promotion to the head of P, and it is judged that the defendant and the defense counsel's allegation in this part is groundless

A) Contents of L’s statement

L, which has provided money to the defendant, is consistently stated from investigative agencies to this court for the following purposes:

① Around August 2012, the Ministry of National Defense introduced the Defendant from the P order, the chief of the JJ division, and then supported the Defendant by the Defendant in the G Gambow. Through the I motive in Q Research Institute, M and Q Research Institute may jointly conduct research or receive subcontracting from the Q Research Institute, and request the person in charge of the military so that 30,000 won can be generated and processed each year, which is the disposal quantity proposed by securing sufficient budget in relation to the N non-militaryization project. N other than N. N. He will talk to the person in charge of the military department so that the budget related to the N non-militaryization can be reflected in the mid- and long-term plan of the military department. He will listen to the word that the military personnel in charge of the military, "..........., a person who entered with golf feling and drinking booming or drinking booming." The Defendant was granted KRW 30 million on December 7, 2012.

② Before July 2013, if the TPP Order from the Defendant was the head of the TPP Order, it will be called this Commander, and if so, it would be a good opportunity for the Defendant to prepare for the pertinent project by giving prior information on what 0 will be born. There are several different and different heads of the armed forces in the I East Order, and there are many other Guns in the I East Order, and P may be promoted by means of force through those people. On the other hand, meals should be provided. On the other hand, golf expenses should be borne. On the other hand, after hearing the end to the effect that “P Order Order will be supported by the promotion of the P Order.” On the other hand, the Defendant was given KRW 20 million as expenses for the promotion of the P Order Order, and the Defendant was given money under the pretext of solicitation for the promotion of the head of the P Order Order. As in June 2014 and July 2015.

③ The talking about the 0 non-militaryization projects from the Defendant had already been known to the witness, and was not practically helpful. The Defendant did not pay money in return for advisory advice.

B) The credibility of L’s statements

L is consistently stating from an investigative agency to this court that the name of money offered to the Defendant is the name of good offices and solicitation in connection with public officials’ duties.

② L is specifically stating to the Defendant on the time, place, background, source of money, etc. The aforementioned L’s statement corresponds to the result of tracking the location of a mobile phone, text message, details of card use, and the statement of related persons, and the Defendant also acknowledges that the remaining statement of L except for money received is replaced by facts.

③ The Defendant asserted that he was given advice at the time when he was first investigated by the prosecution, and denied the name as set forth in this Act. However, at the time of being investigated by the prosecution, the Defendant acknowledged that he was paid for the same solicitation as the facts constituting an offense in the judgment at the time of being investigated by the prosecution, and made a statement to the effect that he was paid for some advisory activities, and led to the confession of his crime.

4. The Defendant received a total of KRW 110 million from L in cash, and appears to have attempted to keep the recipient from transferring his/her act closely. On the other hand, in light of the fact that the Defendant attempted to accompany L and Thailand in relation to solar energy projects and received KRW 3 million in return, the said money was paid to the Defendant’s account, it is difficult to view that the said money was paid to the Defendant’s account.

⑤ From the end of August 2012 to the end of August 2015, the Defendant was suffering from difficulties or business issues while making a large number of telephone conversationss about about 50 to 70 times for three years, and argued that visiting L’s factory or allowing executives to talk with L’s counseling services. However, even according to the Defendant’s statement, the Defendant did not have prepared a contract regarding L or M’s advisory activities, and the Defendant did not submit objective materials proving the contents of the advice he provided. Moreover, the amount the Defendant received from L reaches KRW 10 million in total, and even if excluded from L’s request for a National Assembly member, it is excessive to deem that it is a consideration for advisory activities claimed by the Defendant.

6. AC, the vice president of M, stated that there was no fact that the investigative agency and the defendant provided advice or advice from the defendant in this court.

7) On October 8, 2014, P sent to L the phrase “I am hingly hinging and supporting hingingning hingn, so I have been dissatisfyd with the change of concurrent mings to another place due to lack of legitimacy, but I will be able to do so at all times.” Considering that the contents of the above letter, along with the contents of the above letter, sending the above letter to the operator of a private company that is the subject of duties, a public official sent the above letter in relation to his promotion, it appears that some of the Defendant received was in the pretext of the cost of solicitation for the promotion of P.

B. Determination as to whether the facts constituting a crime committed by a public official under paragraph (3) of the same Article are specified and arranged

Article 3 of the Act on the Aggravated Punishment, etc. of Specific Crimes is a crime established by "receiving money or goods, etc. under the pretext of arranging matters belonging to the duties of a public official". As such, "mediation" generally refers to the act of helping a party to deliver a certain matter belonging to the duties of a public official to the public official, to promote convenience, or to make a decision in the direction that the party wants by exercising influence upon the public official's request or by exercising influence upon the public official's request concerning a certain matter. In this case, the duties of a public official are included in cases of legitimate duties, and it is not necessary to specify the counterpart or contents of mediation, and if a public official received money or goods, etc. under the pretext of mediation as above, regardless of which mediation was actually conducted, the above crime is established (see Supreme Court Decisions 2008Do10496, Feb. 26, 2009; 2008Do10496, Dec. 31, 2012).

In the case of the facts charged under paragraph (3) of the judgment, the name of money and valuables received by the defendant is specified as the solicitation cost for the promotion of the defendant's future distribution, and it is recognized as the above name by each evidence of the judgment including L's statement. Thus, it appears specifically that the matters to be arranged belong to the public official's duties and the name of the receipt of money and valuables is related to the arrangement of the matters

Meanwhile, Article 3 of the Act on the Aggravated Punishment, etc. of Specific Crimes refers to the act of delivering the intention of the parties to a certain matter belonging to the duties of the public official to the public official, promoting convenience, or helping the parties make a decision in the direction they wish by exercising influence on the duties of the public official, and it does not necessarily require the client to obtain direct benefit from the act of good offices. Since the promotion of P as a part of the defendant to the head group cannot be deemed that there is no benefit to L, the solicitation of promotion of P as a part of the defendant constitutes "mediation" under Article 3 of the Act on the Aggravated Punishment, etc. of Specific Crimes.

All of the arguments by the defendant and the defense counsel are without merit.

C. Determination as to whether the "matters belonging to the duties of the National Assembly members" belong to the "matters"

"Matters belonging to the duties of a public official" under Article 3 of the Act on the Aggravated Punishment, etc. of Specific Crimes include not only the duties under the jurisdiction of a public official, but also the acts closely related to or in practice with or in fact engaged in such duties. Whether a specific act falls under the duties of a public official shall be determined by taking into consideration the practical aspects of whether it falls under the duties of a public official, along with the formal aspects that the act was performed as part of a public official, and whether it is reasonably necessary in relation to the duties that the public official should perform (see, e.g., Supreme Court Decision 2009Do6789,

A member of the National Assembly is a member of the National Assembly with the authority to control national finance, including the authority to deliberate and determine the budget, to examine the settlement of accounts, and to examine the state affairs under the National Assembly Act (see, e.g., Articles 122 and 122-2 of the National Assembly Act). Meanwhile, the Board of Audit and Inspection has the authority to ask questions to the Government in writing, to ask questions to the Government, and to ask questions to the Government (see, e.g., Articles 122 and 122-2 of the National Assembly Act). Meanwhile, the Board of Audit and Inspection is a member of the National Assembly who reports to the Board of Audit and Inspection on facts that are found in the course of performing duties under the Constitution and Acts and subordinate statutes, such as the authority to control the state affairs as above and public officials, and facts that are suspected of being illegal or unjust in relation

AD, a secretary of the AP National Assembly, found that there was a problem in the contents and progress of the contract between the Ministry of National Defense and M in the course of promoting the legislation of the National Assembly member with regard to the partial amendment of the Act on the Management of Munitions at an investigative agency, and made it a question to the AP National Assembly member at the time of the extraordinary session and inspection of the state administration. The AP National Assembly member requested the Ministry of National Defense to improve the written question and the system at the time of the AP National Assembly member, and made a statement that it was reported to the Board of Audit and Inspection because it was not an improvement of the system. In light of this, the AP National Assembly member's report was obvious that it was made as part of the official duties in the course of performing his duties

Reasons for sentencing

1. The scope of punishment by law: Imprisonment for not more than seven years and not more than six months;

2. Determination of sentence;

As a reserve order, the Defendant received total of KRW 110 million from the Defendant under the pretext of arranging a military person in charge of military service using his career and military connection. The Defendant’s crime is an act of significantly impairing the fairness of the I’s non-militaryization project, etc. and the general trust thereof, and the crime’s nature is not easy in that the amount received by the Defendant is considerably large amount. When the Defendant came to know of the commencement of the investigation of the instant case, the Defendant appears to have destroyed relevant evidence, such as deletion of his e-mail and change of cellular phone contents, etc., which is disadvantageous to the Defendant.

However, it is favorable to the defendant that the defendant is the first offender, and some of the crimes are led to confession, and that the fact that the defendant did not actually arrange or request a public official or deliver part of the money received is not revealed.

Other circumstances that are conditions for sentencing, such as the age, character and conduct, environment, family relationship, motive and background of the crime, and circumstances after the crime, shall be determined as ordered by comprehensive consideration.

presiding judge, judges, vibration

Judges Park Jong-soo

Judges Kim Jae-nam