(영문) 대전고등법원 2014.10.31.선고 2014노418 판결

(A) Defendant Won-A does not have received an illegal solicitation from KimB with regard to the duties of members of the Joint Urban Building Committee. In order to acknowledge an illegal solicitation by an implied declaration of intent, there is a common perception or understanding between the parties as to the content of the performance of duties subject to the solicitation and the fact that money and valuables provided to a third party are a quid pro quo for the performance of their duties. Defendant Won-A merely recommended the Urban0 Research Institute Co., Ltd. as a specialized service entity at the time, and Co., Ltd. signed a contract with the Urban0 Research Institute. The fact alone was not known.

(B) The service contract related to the "vehicle, pedestrian, accessibility, and analysis of related plans" due to the construction of a gogle between the KCA and the KOOG, Inc. is actually concluded. The service result provided by the KOG, as it is essential for the KOG to be provided from the actual party to the above service contract from the point of 00 other, is the instant B-ro project (referring to the project of constructing two buildings on the ground of 8th, 321 above ground and 1th above ground as part of the project for the maintenance of urban exchange from September, 2005 to the 5th, Jung-gu, Seoul, Seoul, to the 2-5th, Seoul, as part of the project for the maintenance of urban exchange, from the 2-5th, to the 321st above ground). At the time of the conclusion of the above service contract, the KOG was merely an enterprise that can provide services required by gogle to the KOG and it did not actually implement the service contract.

(C) Even if the facts charged in the instant case are found guilty, it cannot be deemed that the entire amount of service payment is a consideration for duties, and it cannot be deemed that the amount of acceptance of bribe is more than KRW 100 million, and therefore, the crime of bribery to a third party under Article 130 of the Criminal Act is only established, not the crime of violating the Act on the Aggravated Punishment, etc. of Specific Crimes (Bribery). In addition, 10 million won as value-added tax

(2) Unreasonable sentencing

The sentencing of the court below (five years of imprisonment) is unreasonable.

(b) A prosecutor;

The sentencing of the court below is unfair because it is too unhued.

2. Judgment on the defendant's assertion of mistake of facts or misapprehension of legal principles

A. Summary of the facts charged

On December 1, 2007, Defendant Won-gu, a member of the Seoul Special Metropolitan City Joint Committee for Urban Construction (hereinafter referred to as “Seoul Special Metropolitan City Planning Committee”) requested KimB to conclude a service contract with the representative director of the Do 00 Institute (hereinafter referred to as “Seoul Special Metropolitan City 00 Institute”) on the five-day Urban Environment Improvement Project (hereinafter referred to as “instant project”) under the name of Jung-gu Special Metropolitan City Special Metropolitan City, Jung-gu, Seoul Special Metropolitan City, for the alteration of the designation of an urban environment improvement zone for the five-day Urban Environment Improvement Project (hereinafter referred to as “Seoul Special Metropolitan City Do 1”) to be a public official in charge of urban environment improvement of the five-day Special Metropolitan City Do 200,000, 300,000,000,000,000,000,000,000,000,000,000,000,000,00,000).

B. The judgment of the court below

Based on the circumstances indicated in its holding, the lower court found Defendant Won-B guilty of the charges on the third party brain supply, on the ground that, at least implicitly and implicitly, Defendant Won-B knew that it would pay money through the service contract with the purpose of solicitation as above, around the time when it would cause the KimB to enter into a service contract with the 00-year city.

C. Judgment of the court below

(1) Relevant legal principles

In the crime of providing third-party bribery under Article 130 of the Criminal Act, the term "competence" refers to an act of requesting a public official to perform or not to perform a certain duty, and the term "illegal solicitation" refers to an act of requesting a public official to perform or not to perform a certain duty, and the term "illegal solicitation" refers to a case in which the performance of duty itself is unlawful or unreasonable, or is not unlawful or unreasonable, but the delivery of consideration in connection with a certain consideration relationship. However, in the crime of providing third-party bribery, the term "the official official shall receive an illegal solicitation in connection with his duty" requires that the scope of punishment is not unclear. This illegal solicitation is intended not only to be made by an express declaration of intent, but also to be made by an implied declaration of intention, but also to be made with an illegal solicitation with a third-party declaration of intention, there is no common recognition or understanding between the public official and the provider of the duty and the third-party benefits with respect to the fact that the benefit offered to the third-party is a consideration for the performance of duty (see Supreme Court Decision 201010Da301,2009, supra.

In addition, in a criminal trial, the acknowledgement of facts must be based on evidence, and criminal facts should be proved to the extent that there is no doubt (Article 307 of the Criminal Procedure Act). In a case where the defendant denies the facts of internal deliberation, such as the recognition of certain circumstances, the facts constituting such subjective elements should be proved by the method of proving indirect facts or circumstantial facts which have considerable relevance in the nature of things, but what constitutes indirect facts having considerable relevance should be reasonably analyzed and determined based on normal empirical rule (see, e.g., Supreme Court Decision 2012Do7377, Aug. 30, 2012).

(2) Determination

In light of the above legal principles, it is difficult to accept the judgment of the court below as it is for the following reasons.

(A) According to the evidence duly adopted and investigated by the lower court, the following circumstances are revealed.

1) As a professor of Hanyang University 00 graduate school, Defendant Hanyang University was in office as the principal of the above graduate school from March 2006, and on March 2, 2005, the above member of the Seoul Urban Planning Committee was promoted as a member of the Seoul Urban Planning Committee, and on March 1, 2009, the member of the Seoul Urban Planning Committee was in office as a member of the Seoul Urban Planning Committee. Meanwhile, KimB completed the above graduate school urban development completion from September 2006 to February 2007, and passed the doctorate course at the above graduate school around November 2007.

2) At around September 2005, Bangladesh passed a deliberation of the Seoul Special Metropolitan City Joint Building Council on the purport that it will acquire the instant business and perform the instant business by taking over the instant business, and commission of design services, etc. to Pest O architect (hereinafter referred to as "Pest O architectural"). On May 24, 2006, 2006, the Seoul Special Metropolitan City Council passed a deliberation on the construction of complex buildings with offices (52.8%) sales facilities (8.4%) apartment houses (20.2%) hotels (18.6%) and hotels (18.6%) with the premise that the use of the building was altered on April 6, 2007, and the construction of the complex buildings should be altered by deducting the apartment houses and hotels from the original plan (90.9%) and the construction of the building for business consisting of only 90.9% and sales facilities (9.1%). On April 6, 2007, the construction of the building should be altered in the road map for the future 800 billion won or less.

3) On November 28, 2007, the Seoul Special Metropolitan City proposed the 24th Seoul Special Metropolitan City Committee for the Joint Committee on Urban Construction, which was held on November 28, 2007, which reflects the above change of the purpose of use of the building. In the process of the deliberation, Defendant A expressed its opinion that it is necessary to maintain accommodation facilities as originally planned, secure green spaces around the building, and prepare measures to secure accessibility of the general public. In addition, among the members of the Joint Committee on Urban Construction, Defendant EE (Seoul University professor), including the largestCC members (Seoul University professor), DD members (the head of the office of the Korea National Housing Corporation, the President of the Korea National Housing Corporation), argued that it is difficult for Red University members to abolish residential facilities, and that it is difficult for the member of the Seoul Special Metropolitan City Council to review the introduction of accommodation facilities and the measures to strengthen public opening of the public building.

4) On December 1, 2007, before receiving the phone from KimB, there was no mentioning or demanding the Kim BB to refer to the deliberation of the Seoul Special Metropolitan City Urban Building Joint Committee or to conclude a research service contract with respect to the instant business. Moreover, there was no evidence that the KimB or Ga Do 00 was aware that the issuance of the decision of withholding at the 24th meeting was mainly opposed to the alteration of the designation by the Gangwon ECE members, etc., and that there was no evidence suggesting the maintenance of accommodation facilities and suggesting a critical opinion on the alteration of designation.

5) The Seoul Special Metropolitan City was held on December 26, 2007 at the 27th Urban Building Joint Committee of Seoul Special Metropolitan City, which partially supplemented the urban environmental improvement zone's change designation agenda. In relation to the plan to strengthen the public openness of buildings, members were almost reflected in the opinion presented at the 24th meeting, but it was reasonable to not introduce accommodation facilities on the ground that there is a need to foster the relevant area as a business-centered area for accommodation facilities and there is no special benefit to the relevant enterprise on the condition of the installation of accommodation facilities. As a result of the deliberation, it was reasonable to not introduce accommodation facilities on the ground that the plan to change the designation agenda for urban environmental improvement zone's above was passed on the condition of partially supplementing the prospect-to-door opening without introducing the plan to introduce accommodation facilities at the 24th meeting, and even DoD members, etc., for which the introduction of accommodation facilities was claimed at the 24th meeting, were not forced to attend the meeting at the 27th meeting. This was justified.

(B) The direct evidence of the facts charged in this case lies in the KimB's investigation agency and the court. The contents of the KimB's statement did not accurately point out that it did not request the originalA in connection with the deliberation of the Seoul Special Metropolitan City City Urban Building Joint Committee. However, it is thought that the defendant originalA was aware that it did not specifically express that it would be able to know and that it would be able to pay research fees." Thus, it is difficult to conclude that the statement by the KimB alone was made by the defendant originalA's statement that he received a solicitation for the execution of his duties through telephone communications with KimB or that the benefits offered to the Urban0 Research Institute are the consideration for the execution of his duties.

Furthermore, as seen earlier, Defendant Won-B first mentioned the deliberation of the Seoul Special Metropolitan City Urban Building Partnership Committee or the conclusion of the research service contract to the KimB, and at the time of telephone call, KimB cannot be deemed to have known the fact that Defendant Won-B opposed to or presented critical opinions on the instant change of designation on the instant project at the 24th meeting. As to the instant service contract, the division of Defendant Won-A and KimB’s opinions in relation to the instant service contract by means of the following: (a) even if Defendant Won-B made a request for any request at the time of telephone call, it is not highly probable that Defendant Won-B received it as a specific performance of duties and received it as related to the specific performance of duties.

(C) The court below held that the act of Gl Dol Dol Dol Dol Dol Dol Dol Dol Dol Dol Dol Dol Dol Dol Dol Dol Dol Dol Dol Dol Dol Dol Dol Dol Dol Dol Dol Dol Dol Dol Dol Dol Dol Dol Dol Dol, which was the subject of deliberation by the Seoul Urban Building Association Dol Dol Do, was the subject of deliberation by the Seoul Urban Building Association Dol Do, and Defendant Dol Do was aware of this fact.

1) However, solely on the basis of the fact that a public official opened a lawsuit against a person related to his/her duties and recommended a third party as a party to a transaction, it shall not be readily concluded that the act constitutes an act of granting a third party unjust benefits in relation to his/her duties immediately. The issue should be determined by comprehensively taking into account various circumstances, such as the process leading up to the introduction and recommendation by a public official, the details of the benefits the third party gains through the introduction and recommendation, the degree of awareness of the public official, the degree of perception of the public official in relation to the introduction and recommendation, whether a public official expectations a benefit in relation to the introduction and recommendation, the details of the act of performing duties

2) According to the facts and records as seen earlier, the following circumstances are revealed in relation to the introduction and recommendation of the instant case by Defendant Won.

① Even based on the reasoning of the lower judgment, Defendant Won introduced and recommended 00 researchers to service companies via KimB’s phone, and it does not require that the Plaintiff first actively entered into a service agreement with the 00 researchers. In addition, in light of the content and telephone communications-related circumstances of this KimB’s statement and the contents of this KimB’s statement, it is not highly probable that KimB emphasized that the Plaintiff was able to see that the Plaintiff’s talks about the service agreement with the Defendant Won and intending to provide research funds and other benefits through the Seoul Special Metropolitan City Committee on the Joint Committee for Urban Construction or through the service agreement.

② A person who introduces and recommends a third party to a transaction at the request of a third party shall act on the premise that the transaction would normally be concluded and implemented. Thus, unless there is any evidence to view otherwise in the instant case, it is reasonable to deem that the service equivalent to the service cost would actually be provided, and that the Defendant introduced and recommended a city0 research institute to KimB. Accordingly, the benefits that Defendant 1 would be obtained by the city0 research institute through his own introduction and recommendation is, in principle, an opportunity to enter into such service contract. Such benefits seems not to be enough to clearly recognize the illegality of the act of providing them only with the content and amount thereof.

The prosecutor argues that the instant service contract is merely a formal contract concluded in the manner of providing money to the Urban0 Research Institute. However, in light of the fact that the Urban0 Research Institute prepared and submitted a report that could serve as a reference to the other side of 100,000 after the instant service contract, it is difficult to readily conclude that the instant service contract is merely a formal contract, and even if the instant service contract was in formality, it cannot be said that the Defendant had proved that the Plaintiff introduced and recommended the Urban0 Research Institute to the KimB as the other party to the instant service contract with knowledge of such circumstance. Thus, it cannot be deemed that the Defendant had perceived that the Urban0 Research Institute was aware of the fact that the Plaintiff had received an opportunity to make the service contract with his own introduction and recommendation, and instead, the Plaintiff did not have been aware that the Plaintiff had received the entire service payment of KRW 11,100,000 without compensation.

③ It was not revealed that Defendant Won sought any benefit from the conclusion of the instant service agreement, or expected such benefit, and introduced and recommended an urban0 researcher to KimB. Defendant Won did not appear to have engaged in the instant service agreement in addition to introducing and recommending an urban0 researcher in telephone conversations with KimB.

(4) The defendant Won cannot be deemed to have committed any unfair act in performing his duties as a member of the Seoul Metropolitan City Joint Urban Building Council after the introduction and recommendation of the above.

The prosecutor argues that the defendant Won-A was not a member of the Seoul Special Metropolitan City City Joint Committee on Urban Construction without any special circumstance while presenting a critical opinion on the agenda, and that it obstructed external doubts about the change of opinion and facilitates deliberation of the agenda. However, at the 24th meeting, the defendant Won-A, claiming the maintenance of accommodation facilities along with the defendant Won-A-A-A-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U-U.

⑤ From September 2006 to February 2007, KimB completed the urban development promotion course at Hanyang University 00 graduate schools at Hanyang University, which was the president of Hanyang University, and around November 2007, immediately before the above telephone conversation, Defendant Won-A knew about the degree of degree and degree.

3) Comprehensively taking into account the aforementioned circumstances, even though considering that the instant business-related agenda was pending in the course of deliberation, it is difficult to deem that the Defendant originalA introduced and recommended the Urban0 Research Institute to KimB as a member of the Seoul Special Metropolitan City Seoul Metropolitan City Joint Committee on Urban Construction in return for unfair performance of duties as a member of the Seoul Special Metropolitan City Committee on Urban Construction upon the request related to deliberation received from KimB.

(D) Other circumstances revealed by the lower court revealed that, on the sole basis of the circumstances indicated in the lower judgment, KimB requested the above Defendant to introduce and recommend the other party to the instant service agreement, Defendant Won made a solicitation to the effect that “the case in the name of research expenses through the service contract is made to enable KimB to pass through the deliberation of the Seoul Special Metropolitan City City Urban Construction Joint Committee without the introduction of accommodation facilities,” and by understanding this, by introducing and recommending the Urban0 Research Institute as the other party to the service contract, and thereby allowing KimB to grant the illegal benefits related to his duties to the Urban0 Research Institute. The facts charged cannot be deemed to have been proven to the extent that there is no reasonable doubt.

Nevertheless, the lower court found the Defendant guilty of the instant facts charged solely on the grounds stated in its reasoning. In so doing, the lower court erred by misapprehending the legal doctrine on the establishment of the crime of providing third-party brain water, thereby adversely affecting the conclusion of the judgment. Therefore, there exists a justifiable ground for appeal pointing this out.

3. Conclusion

Therefore, the judgment of the court below shall be reversed in accordance with Article 364(6) of the Criminal Procedure Act, and the following judgment shall be rendered again after pleading, on the grounds that an appeal for mistake of facts or misunderstanding

【Discretionary Judgment】

1. Summary of the facts charged

The grounds for appeal are as stated in Section 2-A.

2. Determination

As examined in Section 2-C (C) of the judgment on the grounds of appeal above, this part of the facts charged constitutes a case where there is no proof of the crime, and thus, the defendant is acquitted pursuant to the latter part of Article 325 of

Judges

The principal offender (Presiding Judge)

Kim Jin-ray

Long-term Private Telecommunication

Note tin

1) If an urban environmental improvement zone related to the instant land was modified since the 8th underground floor and 39th ground, but thereafter the instant land was modified.

as above, the amendment was made.

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