[1] The time when the crime of using professional secrets is established under Article 50(1) of the Prevention of Corruption Act

[2] In a case where a criminal does not possess the pertinent property or property interest acquired by the crime in the crime of occupational secret use under Article 50 (1) of the Prevention of Corruption Act, whether it can be confiscated or collected (negative)

[3] Whether a public official's purchase of land to a third party by using confidential information that he/she knew in the course of performing his/her duties and the money and valuables received as a consideration shall be subject to confiscation or collection pursuant to Article 50 (3) of the Anti-Corruption Act (negative)

[1] Article 50(1) of the Act on the Prevention of Corruption punishs a third party by using confidential information that a public official becomes aware of in the course of performing his/her duties to acquire "receives" or "property interests". Since major information about the objective value of a certain object was not referred to and disclosed to the public, if the market price is lower than the real value of the property without reflecting the above information, if a public official who became aware of the information in the course of his/her duties lets a third party purchase the goods at a low price by using such opportunity, then the act is the act of making a third party acquire the goods by using confidential information that he/she became aware of in the course of performing his/her duties, and the crime provided for in the above Article of the Act is established immediately when the third party purchases the goods, and then the crime is disclosed to the public and subsequently profits arising from the above crime were realized by disposing of the information again, and then the crime under the above provision of the Act is not established.

[2] The necessary confiscation or collection pursuant to Article 50(3) of the Anti-Corruption Act is for the purpose of depriving the offender or a third party of the property or property gains acquired by the offender or the third party who knows such fact from them and preventing the offender or the third party from holding unlawful profits. Thus, even if the offender does not possess the pertinent property or property gains acquired by the above crime, it shall not be confiscated or collected from the offender.

[3] Money and other valuables received as consideration by a public official to a third party using confidential information he/she learned in the course of performing his/her duties shall not be subject to confiscation or collection under Article 50(3) of the Anti-Corruption Act since it does not constitute holding the pertinent property acquired through the above crime.

[1] Article 50(1) of the Anti-Corruption Act / [2] Article 50(1) and (3) of the Anti-Corruption Act / [3] Article 50(1) and (3) of the Anti-Corruption Act

Defendant

Defendant

Changwon District Court Decision 2005No2061 Decided September 7, 2006

All the judgment of the court below and the judgment of the court of first instance shall be reversed. The defendant shall be punished by imprisonment with prison labor for one year. 34 days in the detention days before the judgment of the court of first instance is sentenced to the above punishment: Provided, That the execution of the above punishment shall be suspended for four years from the date when this judgment becomes final and conclusive.

1. As to the ground of appeal on the violation of the Anti-Corruption Act

Examining the reasoning of the judgment below in light of the records, the court below is just in finding that the defendant was aware of the fact that the construction of the Cheongsi-gun and (name omitted) non-indicted 1 and 2 (name omitted) the budget necessary to improve the flow of flowing water in the prone area were cultivated, and the acquisition of a consultation and compensation for the gold papers (the tax number and size omitted) in Gyeongnam-gun, Gyeongnam-gun (hereinafter "the land in this case") was conducted after considering the evidence adopted by the court below, and that the non-indicted 3 was informed of the above fact to the non-indicted 3 and had the defendant purchase the land in this case from the non-indicted 4 through his brokerage, and it constitutes an act using confidential information that the public official knew in the course of performing his duties. Contr to the allegations in the grounds of appeal, there is no error of misapprehending facts contrary to the rules of evidence or misapprehending the legal principles on the violation of Article 50 (1) of the Prevention of Corruption Act, etc.

2. Ex officio determination

Article 50(1) of the Act on the Prevention of Corruption punishs a third party by using confidential information that a public official has learned in the course of performing his/her duties to acquire "receives" or "property interests". Since major information about the objective value of a certain object was referred to confidential information and has not been disclosed, if the market price is formed lower than the real value of the property without reflecting the above information, if a public official who became aware of the information in the course of performing his/her duties had a third party purchase the goods at a low price by using such opportunity, he/she would immediately cause a third party to acquire the goods by using confidential information that he/she has become aware in the course of performing his/her duties, and if the third party purchases the goods, then the crime provided for in the above Article 50(1) of the Act shall be established, and later, the third party obtains profits by disposing of the information and then disposing of the profits thereby resulting from the above crime, it shall not be deemed that the crime provided for in the above Act has been established.

In this case, as determined by the court below, if the defendant, who became aware of the secrets that the business of purchasing and removing the instant land was conducted for the purpose of improving the flowing water flow in the area of habitual flooding area during the business process, used an opportunity to form a low market price due to the lack of information and let friendly non-indicted 3 purchase the instant land, the crime was established that had a third party acquire the “relic” under the above provision of the Act at that time, and only if the non-indicted 3 acquired the proceeds of resale equivalent to KRW 85,059,00 from selling the instant land to the Busan-gun, the crime of acquiring the “property interest” equivalent to the proceeds from resale is not established.

Therefore, with respect to the defendant's act, it is wrong that the court below committed an act of acquiring property from a third party, not a violation of the Anti-Corruption Act by having a third party acquire property from the land of this case, but a violation of the Anti-Corruption Act by having a third party gain property equivalent to the resale marginal profit. However, this is limited to an error of the time of crime establishment in a series of continuous series of acts conducted by the defendant, and the crime of having a third party obtain property from a third party using secret known to the public official in the course of performing his duties and the crime of having a third party gain property gains by using secret obtained in the course of performing his duties is a crime punishing the act of acquiring property from a public official's secret use in order to prevent corruption and to create a clean public service and social climate, and the crime of causing a third party to acquire property is identical and the punishment does not affect the conclusion of the judgment. Thus, the above error of the court below is not a ground for reversal of the judgment below (see, e.g., Supreme Court Decisions 89Do1083, Mar. 27, 190).

3. As to the ground of appeal on collection

The necessary confiscation or collection pursuant to the provisions of Article 50(3) of the Anti-Corruption Act is not possible if a criminal or a third party who knows that the criminal or a third party has deprived of his or her property or profits he or she has acquired from them and prevents the criminal or a third party from holding unlawful profits. In light of the fact that the criminal, even if he or she commits the crime, a person who does not possess the property or profits on property acquired by the crime can not be confiscated or collected from him or her.

In the instant case, as seen earlier, the Defendant’s crime did not result in Nonindicted 3’s acquisition of pecuniary advantage equivalent to the proceeds from the resale of the instant land, but rather acquired the instant land as property. Thus, even if the Defendant received KRW 20 million from Nonindicted 3 in return for the instant crime, it does not constitute holding the pertinent property acquired through the instant crime, and thus, it does not constitute confiscation or collection under Article 50(3) of the Anti-Corruption Act.

Nevertheless, the judgment of the court below which judged that the defendant's acquisition of property or property benefits by a third party and the acquisition of property or property benefits in return shall also be subject to collection is erroneous in the misapprehension of legal principles as to collection under Article 50 (3) of the Prevention of Corruption Act, and it is clear that this affected the judgment. Thus, the ground of appeal pointing this out has merit.

4. Therefore, the judgment of the court below is reversed, but this part of the case is sufficient to be tried by this court, and it is directly decided as follows pursuant to Article 396(1) of the Criminal Procedure Act.

As seen above, the grounds of appeal on the mistake of facts and misapprehension of legal principles and the judgment on such grounds are as examined in the grounds of appeal on the violation of the Anti-Corruption Act. However, since the judgment of the first instance erred by misapprehending the legal principles on collection on the grounds as seen above, the grounds of appeal pointing this out cannot be maintained any longer, the judgment of the first instance cannot be reversed and the judgment is to be rendered again as follows.

The summary of the facts constituting a crime and the evidence recognized by this court is as stated in each corresponding column, except that the second eight lines of the facts constituting a crime in the judgment of the court of first instance (2003.11.1.1.1.1.1.) are “In order to enable Nonindicted 3 to acquire the above (the number and size omitted) by allowing Nonindicted 3 to acquire the above (the number and size omitted).” As such, it is identical to the description in each corresponding column under Articles 399 and 369 of the Criminal Procedure Act.

The act of judgment falls under Article 50 (1) of the Anti-Corruption Act, and the defendant shall be punished by imprisonment with prison labor within the scope of the term of punishment, and the 34 days of detention before the judgment of the court of first instance is sentenced to Article 57 of the Criminal Act, and the defendant shall be included in the above sentence under Article 57 of the Criminal Act. However, the defendant shall return 20,000,000 won in return for committing an act of corruption to society, and there are extenuating circumstances, such as returning 20,000 won in return for an act of corruption, etc., under Article 62 (1) of the Criminal Act, the execution of the above sentence shall be suspended for 4 years from the day when the judgment becomes final and conclusive, but sufficient accommodation is required in light of the nature of the crime of this case. Thus,

5. Therefore, all of the judgment of the court below and the judgment of the court of first instance are reversed, and it is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Ill-sook (Presiding Justice)