[1] Whether a crime of occupational breach of trust is established in a case where a public official, in violation of his/her duties, has a third party acquire economic benefits and inflicted loss on the State (affirmative)

[2] The meaning of "an act contrary to the duty" in the crime of occupational breach of trust, and the case where an intentional act of breach of trust and an intent of unlawful acquisition are recognized

[1] Articles 355(2) and 356 of the Criminal Act / [2] Articles 355(2) and 356 of the Criminal Act

[1] Supreme Court Decision 2006Do222 Decided June 26, 2008 (Gong2008Ha, 1090), Supreme Court Decision 2010Do387 Decided October 14, 2010 (Gong2010Ha, 2120) / [2] Supreme Court Decision 2007Do6075 Decided November 15, 2007, Supreme Court Decision 2009Do1464 Decided October 27, 201 (Gong201Ha, 2483), Supreme Court Decision 2012Do3840 Decided September 13, 2012

Defendant 1 and two others

Defendants

Law Firm K&C et al.

Seoul High Court Decision 2013No864 decided May 21, 2013

All appeals are dismissed.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. Determination on Defendant 1 and 2’s grounds of appeal

A. As to whether breach of duty, intent of breach of trust, and intent of unlawful acquisition are recognized

Where a public official causes damage to the State by having a third party obtain economic benefits through an act in violation of his/her duties, an occupational breach of trust is established (see Supreme Court Decisions 2006Do2222, Jun. 26, 2008; 2006Do2222, Jun. 26, 2008). In the crime of occupational breach of trust, the term “act in violation of his/her duties” refers to any act in violation of a fiduciary relationship with the principal by failing to perform, or by performing, an act expected not to perform, as a matter of course in light of the legal provisions, terms and conditions of a contract, or the principle of trust and good faith in light of the specific circumstances, such as the content and nature of the pertinent duties, and as long as a public official obtains economic benefits or causes a third party to obtain such benefits and causes damage to the principal, the intention or intent of unlawful acquisition is recognized (see, e.g., Supreme Court Decisions 2012Do3840, Oct. 27, 2011>

The lower court determined that Defendant 1 and 2, who are public officials, committed the act of selling the private site and the act of selling the private site to be used after Nonindicted 1’s retirement and the collective purchase of the security site, and distributed the purchase price to Nonindicted 2 and the State after the conclusion of a sales contract, constitutes an intentional and objective method to set the ratio on the basis of the arithmetic average of the appraised values of multiple appraisal business entities under the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects, unless there is any other special substitution method, and thus, it is most reasonable and objective to allocate the ratio on the basis of the arithmetic average of the appraised values of the multiple appraisal business entities under the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects. However, in disregarding the result of the request for appraisal by multiple appraisal business entities and the notification of the result, it was evaluated relatively relatively relatively differently from the appraised results by neighboring real estate business entities, Internet, etc. and the higher purchase price by evaluating the purchase price at a lower level in the security site constitutes an act of breach of trust by the State.

In light of the above legal principles and records, the judgment of the court below is just, and there is no error in the misapprehension of legal principles as to breach of trust.

B. As to the amount of profit

After calculating the amount of damages based on the appraised value and on the premise that there is no problem in the credibility of the appraisal, the lower court determined that the amount of damages for breach of trust was the amount of damages for the instant case, 972,058,098, which is the difference between the pertinent share in the security site, calculated by dividing the total amount of 5.4 billion won in the purchase price of land in proportion to the arithmetic average of each appraised value and each appraised value of the lower land in the security site, and the share in the security site calculated by the Defendants, as damages for breach of trust

In light of the records, such determination by the court below is just, and there is no error by misapprehending the legal principles on the calculation of the amount of profit in breach of trust.

C. As to the assertion on unreasonable sentencing (Defendant 2)

According to Article 383 subparagraph 4 of the Criminal Procedure Act, only cases where death penalty, life imprisonment, or imprisonment with or without prison labor for not less than ten years has been imposed, and the judgment of the court below affected the conclusion of the judgment or the amount of the punishment has been extremely unreasonable. Thus, in this case where Defendant 2 was sentenced to imprisonment with prison labor for one year and six months, and three years of suspended execution, the allegation that the sentence is too unreasonable is too unreasonable is not a legitimate ground for appeal.

2. Judgment on Defendant 3’s grounds of appeal

On the premise that the document subject to alteration is not a file stored in the official server of the Security Service, but a file in the second report itself, i.e., a file prepared by the second report, and then a paper document approved in sequence by the approving authority, the lower court determined that Defendant 3 performed the second report by altering the second report by the method as stated in its reasoning, based on the circumstances stated in its reasoning.

In light of the records, the judgment of the court below is just, and there is no error of exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or of misapprehending the legal principles on the crime of altering official documents or the concept of documents

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 Park Poe-young (Presiding Justice)