2015No784 Act on the Prevention of Corruption and the Establishment and Management of the Anti-Corruption and Civil Rights Commission

○○ (○) A public official,

777--

Reference domicile

Defendant

Kim Jong-hun (Court Prosecution) (Court of Justice) and Kim Tae-sik (Court of Justice)

Attorney Kim Kim-○

Daegu District Court Decision 2014 High Court Decision 194 decided February 3, 2015

December 4, 2015

The defendant's appeal is dismissed.

1. Summary of grounds for appeal;

A. misunderstanding of facts and misapprehension of legal principles

The plan to purchase a site for the re-building project of Buriban Si, Inc. (hereinafter referred to as the "plan in this case") does not constitute a "confidential" (hereinafter referred to as "business secrets") that he becomes aware of in the course of performing his duties under Article 7-2 of the Act on the Prevention of Corruption and the Establishment and Operation of the Anti-Corruption and Civil Rights Commission (hereinafter referred to as the "Corruption and Civil Rights Commission Act"). Even if the plan in this case falls under the business secrets, it cannot be said that the acquisition of knbal I land (hereinafter referred to as the "land in this case") by the defendant when he comes to fall under the business secrets, it does not constitute a case where he uses the business secrets, and it cannot be said that the defendant acquired property benefits by using the business secrets.

B. Unreasonable sentencing

The punishment of a fine of KRW 20 million sentenced by the court below is too unreasonable.

2. Determination;

A. Judgment of the court below on the assertion of mistake of facts and misapprehension of legal principles (1)

The lower court determined as follows: (a) the fact that the instant land is land to be acquired at the market price of B/L is not open to the public; (b) the specific details of the land would affect the implementation of the project plan or the real estate transaction market; and thus, (c) the instant land falls under “business secrets”; and (d) the Defendant, in the process of handling the civil complaints by Kim○○○, is subject to B/L acquisition

The facts charged in this case were found guilty on the ground that the defendant's act constitutes "where the defendant acquired property by using confidential information learned while conducting his/her duties, as long as he/she did not notify Kim ○○ of the fact that the land in this case is subject to acquisition at the time of B/L, and as long as he/she acquired the land in exchange for the defendant's own land, not subject to acquisition at the time of B/L.

(2) Determination of the trial court (A) Whether the case constitutes occupational secrets

The term "confidentials known in the course of performing the duties" as defined in the Anti-Corruption Act, provided that they are worthy of protection as secrets, shall not necessarily be classified as confidential or confidential under the laws and regulations, but shall not be classified as confidential depending on political, military, diplomatic, economic and social needs, as well as shall not be disclosed from the objective point of view to the general public.

It should also be interpreted that there is a substantial benefit (see Supreme Court Decision 2009Do1490 decided July 23, 2009).

In light of the following circumstances acknowledged by the evidence duly adopted and investigated by the court below, the land of this case is located near the cremation and garbage landfill site, and there were no special infrastructure around the time the defendant acquired the land of this case, and the land of this case and its neighboring areas seems to have been rarely traded before and after the time the defendant acquired the land of this case, and the land price of the land of this case is increased due to public works (inasmuch as cremation was located near the land of this case before the defendant acquired facilities, it would be an object of purchase of B/L under the plan of this case to the extent that the land of this case would be an increase in land price, and the land price of this case would be sufficiently determined by the court below that the defendant acquired the land of this case to the extent that the land of this case and the land of this case would have become an object of purchase of the land of this case after the defendant acquired the land of this case, and the land price of this case would have been increased due to the use of the land of this case to the extent that the land of this case would have been lawfully owned by the court below.

B. Determination on the assertion of unfair sentencing

The Defendant, who is a public official in the status of volunteer to the entire citizen, was aware of his duty to perform his duties in a fair and integrity manner, and acquired property benefits by using his position, and the nature of the crime is very bad, and the Defendant’s defense that the Defendant cannot obtain up to the trial court’s decision, and denied the facts charged in this case. The lower court partially reduced the fine amount of the summary order by taking into account the favorable circumstances for the Defendant, and there is no special change in circumstances that make it possible to change the sentence of the lower court after the sentence of the lower court was rendered, and there is no other change in circumstances that make it possible to change the sentence of the lower court. In addition, considering the Defendant’s age, character and conduct, environment, family relationship, and circumstances after the crime, the lower court’s punishment is too unreasonable. Therefore, this part of the Defendant’s assertion is without merit.

3. Conclusion

Therefore, the defendant's appeal is without merit, and it is dismissed in accordance with Article 364 (4) of the Criminal Procedure Act. It is so decided as per Disposition.

Judges Kim Jong-hoon

Judges Shee-hee

Judges Lee Dong-ho