Defendant

Dog-Appellee (prosecutions, public trials)

Attorney Lee Jae-mun et al.

A defendant shall be punished by imprisonment for three years.

The Defendant is a person who serves as the head of △△△△△ City from July 1, 2010 to ○○ City.

In the past, the Defendant filed a lawsuit against Nonindicted 2 and 3 on February 7, 2005 against the Defendant’s non-indicted 4 association in the name of Nonindicted 2 and 3 on the ground that: (a) on March 18, 2008, the ○○○○○ △△-dong (number 3 omitted) and two lots of land, including 1,082 square meters (hereinafter “instant land”) were sold on December 27, 2004; and (b) on the ground that the land substitution plan under the land substitution plan under the land substitution plan under the land substitution plan under the land substitution plan (hereinafter “instant project”); and (c) on March 18, 2008, the High Court rendered a lawsuit against the Defendant to revoke the designation of the land substitution plan under the name of Nonindicted 2 and 3, which was the premise of the above disposition; (d) on the ground that there was a defect in the process of delegation of authority, but the instant land was designated as the general residential land, not the land substitution plan.

As above, the Defendant, who lost the lawsuit against the victim non-indicted 4 in the disposition of revocation of the designation of the land scheduled for substitution, was in a position to no longer dispute the disposition of the land scheduled for substitution. On June 2, 2010, the Defendant was elected to the head of △△△△ Hospital in ○○ Metropolitan City on July 1, 2010 and was appointed on his office on July 1, 2010. In order to complete the instant project without dumping the training on the aforementioned disposition of the land scheduled for substitution, the Defendant sawd the victim non-indicted 4 association to have the authority to permit or consult with the construction of infrastructure in the △△ District, such as △△cheon (small Rivers in △cheon District), which is essential for the instant project,

Accordingly, on July 21, 2010, the Defendant filed a lawsuit claiming compensation for losses against the victim non-indicted 4 association (hereinafter “instant lawsuit”). On September 20, 2010, the Defendant instructed the victim non-indicted 4 association to request an audit to the auditor of the viewing room, and ordered the non-indicted 7, the head of the urban improvement team of the △△△△ Office, to send a written request for cooperation to resolve the said civil petition and the pertinent development plan, on the ground that the Defendant received a timely inspection of part of the △ district directly on the ground that he received the instant civil petition call around November 8, 2010 or around September 9, 2010, at the victim non-indicted 4 association’s day-to-day meeting on September 20, 2010.

또한 피고인은 2010. 12. 14. ○○ △구 ◎동에 있는 △구청 내 구청장실에서, 이 사건 소송의 실제 당사자가 피고인이라고 생각하고 피고인을 찾아온 피해자 공소외 4 조합의 조합장인 피해자 공소외 1(대법원판결의 공소외인)을 상대로, 이 사건 토지의 환지와 관련해서는 피고인이 무조건 20억 원을 받아야 한다고 강조하면서 이 사건 사업이 완료되려면 피고인이 결재하지 않으면 안 된다거나 피해자 공소외 4 조합에서 이 사건 토지 위에 피고인 명의로 되어 있던 건물을 피고인 동의 없이 철거하였다는 이유로 이에 대해 구청장이 고발하면 피해자 공소외 1이 구속될 수밖에 없다는 식으로 겁을 주었다.

After that, the Defendant suggested that Nonindicted 1 exchanged the existing reserved land for replotting of the instant land as a parking lot site in order to meet the Defendant’s misconduct by requesting the resolution of the pending issues of Nonindicted Cooperative 4, including △△cheon Construction Permission, but the said scheme was impossible due to the opposition to the viewing development plan, etc., by abusing the discretionary adjustment system, and thus, in the instant lawsuit in which there is no possibility of winning the Plaintiff, there was a high possibility of winning the Plaintiff, thereby pretending to reach an agreement with the Defendant and the Nonindicted Cooperative 4.

In relation to this, the Defendant directed the victim non-indicted 1, who had expressed a difficult 1.3 billion won payment due to the financial difficulties of the cooperative at the time, to take the phone on April 4, 201, and the date of mediation set on May 27, 201, and to reach an agreement as soon as possible in order to resolve the pending issues of the cooperative non-indicted 4. On April 7, 2011, when the head of the Gu office does not reach an agreement again, the public officials in charge of the affairs related to the non-indicted 4 cooperative, such as the permission for the construction work of △△cheoncheon, are deemed to have made no effort by the victim since the public officials in charge of the affairs related to the non-indicted 4 cooperative, such as the permission for the construction work, are deemed to have made no effort by the victim, and as soon as possible, the Defendant tried to find a solution method to resolve the dispute before finding the public officials in charge of the mediation agreement.

On April 11, 2011, the defendant continued to prepare and coordinate a proposal to pay KRW 1 billion to the victim non-indicted 1, unlike the defendant's instructions. On the same day, at around 12:23 on the same day, the victim non-indicted 1 1 am a telephone with the cell phone number (the cell phone number omitted) of the defendant's cell phone number (the cell phone number omitted) and put the victim non-indicted 1 1 am a brut to the non-indicted 1 am without immediately concluding the mediation agreement at KRW 1.3 billion.

The Defendant, as such, agreed on the conciliation agreement to the effect that “the victim Nonindicted Party 1 would pay KRW 1.3 billion to Nonindicted Party 2 and 3” at the conciliation room of the Incheon District Court 1112, thereby having the victim Nonindicted Party 1 attacked the victim Nonindicted Party 1, thereby having the victim Nonindicted Party 1 gain pecuniary advantage equivalent to the same amount.

1. Each legal statement of the witness Nonindicted 1, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 7, and 20

1. Part of the written statement by the prosecution against Nonindicted 21 and 22

1. Investigation report (including confirmation of the permit or composition of Defendant’s assertion), investigation report (including a representative meeting minutes of a decision on increase by 20 percent, the meeting minutes of a decision on increase by 20 percent, the organization of the competent department of the ○○○ △△△ Office, etc., response documents according to a special inspection request, public documents related to the creation of the parking lot in △△ District, confirmation of the conditions for the implementation of the

1. An appraisal statement, three copies of the judgment of revocation of the disposition of revocation of the designation of the land scheduled for substitution, the protocol of revocation of the designation of the land scheduled for substitution, a copy of the lawsuit claiming compensation for losses, a copy of the consultation on purchase of the parking lot, mediation protocol, the progress of the

1. The date of December 14, 2010, the date of December 16, 2010 (the date of actual use shall be deemed as of December 17, 2010), the date of December 21, 2010, the date of February 10, 201 (the date of actual use shall be deemed as of February 9, 201), the date of April 7, 201, the date of each of Nonindicted Party 1 and the Defendant as of April 12, 201, the date of each of Nonindicted Party 1 and Nonindicted Party 22 as of January 10, 201, the date of each of Nonindicted Party 1 and 13 as of April 111, 201, the date of each of the sound recording and each of the relevant records (the date of actual use shall be deemed as of February 9, 2011), the date of each recording and each of the relevant sound recording (the date of each recording).

1. Article applicable to criminal facts;

Article 3 (1) 2 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes and Article 350 (1) of the Criminal Act

1. As to the assertion that the copy and transcript of the voice file are inadmissible

A. Summary of the assertion

Of the evidence produced by the prosecutor as evidence, a copy of each voice file in which the defendant and non-indicted 1 recorded a conversation between the defendant and the non-indicted 1 [the CD No. 10, Dec. 14, 2010, Dec. 16, 2010 (the log No. 10, Dec. 17, 2010), December 21, 2010 (the log No. 20, Dec. 20, 2010), February 10, 2011 (the log No. 20, Feb. 9, 2011), and each of the recording cannot be admissible as evidence between the original and the non-indicted 1, 201; the copy of the voice recording No. 10, Apr. 12, 2011, and each of the recording No. 4, as evidence of the aforementioned digital tape No. 20673, Dec. 24, 2011).

B. Determination

In light of the aforementioned evidence and the following circumstances acknowledged by the legitimate examination of evidence by this court, the copies of each of the above audio recordings as evidence by the prosecutor applied for as evidence are not the original stored in the digital recorder, but they are recognized as copied copies of the original without any artificial opening, such as editing in the duplication process, and there is little room for false entry into the above defendant's statement in light of the contents of the statement, the circumstances of the statement, the contents of the statement, and the relationship between the dialogues, etc., and there is little room for false entry into the above defendant's statement, and it is determined that there is credibility and voluntariness in the statement, and Article 14 of the Protection of Communications Secrets Act is judged as directly recorded with the defendant. Since Article 14 of the same Act is not applicable to the conversation of the party to the conversation, each of the above audio recordings also are admissible as evidence, and each of these recordings is recognized as identical to each of the audio recordings of the contents thereof by the result of the examination by

① Nonindicted 1 did not properly proceed on the grounds that the instant business did not obtain permission, etc. from the △△△ Office, etc. from the △△ Office, and found the Defendant as the head of the △△ Office on December 14, 2010. In the process of requesting the cooperation of the Defendant, Nonindicted 1 prepared digital tape recorderss in advance and recorded the conversations with the Defendant each time they divided into conversations with the Defendant.

② Nonindicted 1 deleted the original file of a digital recorder, instead of copying the original file stored in the digital recorder, from one’s office to one’s office after recording a conversation with the Defendant, which had been limited to the capacity of the digital recorder, and subsequently repeated the process of recording the Defendant’s next conversation with the said digital recorder. In the instant case, Nonindicted 1 submitted to the prosecution the copy and the transcript of the said sound recorder reproduced on the computer in the course of being investigated by the prosecution, and the Prosecutor applied for this case as evidence.

③ Nonindicted 1 stated in the prosecutor’s office and this court that each of the above audio files is identical between each of the audio files recorded on his own and the Defendant’s computer as a copy of a copy of the conversation that he himself recorded on his own, and that it is also identical between each of the audio files and the record.

④ The Defendant also stated in the prosecutor’s office or this court that the copy of each of the above audio recordings was entirely heard from the beginning to the end, and that it was not recorded in the beginning part of each of the audio recordings recorded on December 14, 201 or on February 10, 201, the Defendant’s statement to the effect that it is identical between each of the audio recordings and the relevant audio recordings.

⑤ In the Supreme Prosecutors’ Office of Scientific Investigation, the Supreme Prosecutors’ Office determined that the results of long-term precise assessment of copies of each voice recording as of December 14, 2010 and February 10, 201 cannot find a trace of editing as of the results of the long-term precise assessment by means of analysis, precision listening analysis, mpact analysis, spact analysis, spact analysis, LTAS analysis, ENF analysis, and sound recording analysis, which are an internationally widely used analysis method.

2. As to the assertion that the crime of extortion is not established

A. Summary of the assertion

1) In the instant lawsuit, Nonindicted Co. 4’s claim for damages for committing an illegal act, such as not only disposed of the instant land as a land scheduled for substitution as a general residential site, but also not recognizing the Masp reduction rate, and there was a possibility of winning an actual amount.

2) The Defendant did not commit any unlawful act, such as obstructing Nonindicted 4’s relevant business affairs, such as △△cheon, or ordering Nonindicted 4 to pressure a large amount of damages, with the intent of pressureing Nonindicted 4 association to receive large amount of damages, and there was no fact that Nonindicted 1 threatened Nonindicted 1 by taking advantage of the position of the head of △△△△△△ branch to take advantage of the position of the head of △△ branch.

3) On the other hand, the Defendant filed the instant lawsuit in order to exercise the lawful damage claim and led to a voluntary conciliation in the court through a normal procedure. Even if the Defendant partly threatened Nonindicted 1 in the process, the said intimidation is acceptable by social norms in light of the relationship between the Defendant and Nonindicted 1, the calculation of the profit and loss between the Defendant and Nonindicted 1, and the circumstances in which Nonindicted 1 negotiated and coordinated with the Defendant on an equal footing with the Defendant.

4) Even if Non-Indicted 1 was partially released by the Defendant’s intimidation, Non-Indicted 1 reached a voluntary conciliation in a normal procedure with the involvement of the court. Therefore, the causal link between the Defendant’s intimidation and the voluntary conciliation was severed.

5) Therefore, even if any mother is, Nonindicted 1’s intimidation cannot be deemed to have reached the instant conciliation.

B. Determination

1) As to whether the claim for damages of this case asserted by the defendant is reasonable

On the other hand, the following circumstances acknowledged by the above evidence are as follows: ① at the time when the defendant brought the lawsuit in this case, it was highly likely that the claim for the compensation of non-indicted 4 was dismissed because the nature and scope of the claim for the compensation of damages was not clearly predicted at the time when the disposition for the designation of substitute land was not finalized, and whether it satisfies the requirements for future performance lawsuit; ② The lawsuit in this case is premised on the substantive illegality of the disposition for the designation of substitute land substitution for the land in this case. As determined by the court in the previous administrative litigation, it is difficult to view that the above disposition for the designation of substitute land substitution for the above lawsuit is unlawful and it is difficult to deem that the damage was caused to the non-indicted 2 and 3 as alleged by the defendant; ③ the method for calculating the claim for compensation of damages claimed by the defendant in this lawsuit is difficult to be recognized by the court; ④ although the non-indicted 4 did not recognize the decrease rate at the time of the first scheduled substitute land substitution for the non-indicted 2 and 3 as well as the defendant's claim for the compensation of this case.

2) As to whether the crime of extortion is established

A) Legal principles as to the crime of extortion

Intimidation as a means of the crime of threat refers to the notice of harm and injury that is likely to be hot enough to restrict the freedom of decision-making or interfere with the freedom of decision-making, and the notice of harm and injury is sufficient if it does not necessarily require the method of specification, and it is sufficient to have the other party recognize that it would cause harm and injury to the other party by language or dynamics, and even if not directly, it may indirectly be made through a third party other than the one to be threatened. In addition, even if an actor demands the delivery of goods or pecuniary benefits by using illegal console based on his occupation, status, etc., and if the other party fails to comply with such demand, the threat of harm and injury and injury may also be made even if the perpetrator demands the delivery of goods or pecuniary benefits, and if the other party fails to comply with such demand, it would cause an unreasonable disadvantage (see Supreme Court Decision 2003Do709, May

B) In the instant case:

In light of the following circumstances acknowledged by the aforementioned evidence, the Defendant brought the instant lawsuit in the position of the head of △△△△△ in which there is little possibility of winning the instant lawsuit against Nonindicted Co. 4, and demanded Nonindicted Co. 1 to reach an agreement on mediation in KRW 1.3 billion, and if Nonindicted Co. 1 fails to comply with the said request, he threatened Nonindicted Co. 4, by threatening Nonindicted Co. 4, such as suggesting that he would refuse consultation, etc. with respect to Nonindicted Co. 4, the pending issues of the Nonindicted Co. 4, which are the pending issues of the instant association, to the effect that the instant project would not be completed smoothly, thereby inducing Nonindicted Co. 1 to go against the instant conciliation. This part of the allegation is without merit.

① At the time, the Defendant, as the head of △△△, had the authority to consult and grant permission regarding the construction of △△cheon and the creation of buffer green belt zones, etc. essential for Nonindicted 4’

② In addition to the previous administrative litigation, the Defendant appears to have lost Nonindicted 1 from Nonindicted 5’s previous election of the head of the △△△ Association, as well as due to the distribution of printed materials with which Nonindicted 1 1 saw himself. The Defendant was appointed as the head of △△△ on July 1, 2010, and the Defendant brought the instant lawsuit on July 21, 2010. On September 20, 2010, when considering the fact that Nonindicted 4 sold one parcel of parking lot from among the land allotted by the △△△△ Office to Nonindicted 5 Agricultural Cooperative, the Defendant ordered the △△△△△△ Office to request for an audit of Nonindicted 4’s parking lot from the △△△△△△△ Office, which was located in the △△△△△△ Office’s construction site, to the extent that it was not unlawful in selling the above parking lot site at the △△△△△ office’s planning and audit room, which was located in the △△△ office’s general inspection site.

③ However, on December 14, 2010, the Defendant asserted that the head of △△△△ Office should promptly receive KRW 2 billion from Nonindicted Party 1 as a result of the instant lawsuit for damages incurred by Nonindicted Party 1, and that he/she would not give consent to the application for the extension of Nonindicted Party 4’s business concerning the instant project. In the meantime, Nonindicted Party 1 could easily detain Nonindicted Party 1 by filing a complaint with the prosecutor regarding the illegal removal of the building owned by the Defendant, and Nonindicted Party 1 could not be subject to the completion of the instant project without the Defendant’s approval, and it is believed that Nonindicted Party 1 had the former intention to conviction.

④ From the first met of the Defendant on December 14, 2010, Nonindicted Party 1 requested the Defendant to provide cooperation related to △△cheon, green belt zone, etc., but this is the one after being threatened by the Defendant as referred to in the above paragraph 3. Furthermore, examining the dialogue between the Defendant and Nonindicted Party 1, Nonindicted Party 1 requested the Defendant to provide the above cooperation, but the purport of this request does not change unfairly preferential treatment to Nonindicted Party 4, but rather, it seems that the public officials of the Gu △△△ Office would cause the Defendant to correct the unfair performance of duties against Nonindicted Party 4.

⑤ Nonindicted 1, who was appointed in relation to the instant lawsuit from Nonindicted 4’s attorney-at-law and the land surveyor at the time, provided an explanation to the effect that there was little possibility of winning the instant lawsuit and that there was little reason for winning the instant lawsuit. However, in addition to Nonindicted 1’s intimidation, Nonindicted 1 continued to make any effort without voluntary conciliation, even if Nonindicted 1’s failure to comply with the instant lawsuit, it is absolutely considered that Nonindicted 1’s public officials in the △△△ Office would not cause any consultation with Nonindicted 4 in relation to the instant business, such as △△cheoncheon, etc., and if the consultation with the △△△ Office is delayed, it would be likely to cause any disadvantage such as early completion of the instant project and enormous financial costs, etc., thereby resulting in the instant conciliation.

(6) After the instant voluntary conciliation was established, consultation on the construction, the creation of a buffer green belt zone, and the purchase of parking lots between the △△△△ Office was conducted smoothly. However, in light of the fact that it is difficult to deem that the Defendant or the public officials of the △△△ Office unfairly given preferential treatment to Nonindicted 4 association in the process, it is reasonable to deem that Nonindicted 1 would not receive “unfair treatment” from the Defendant’s side to receive “unfair preferential treatment” in relation to the instant business, rather than accepting the instant voluntary conciliation from the △△△ Office.

7) Even if the Defendant’s act was a lawful exercise of authority as the head of △△△, and the Defendant’s claim for damages was recognized, it is difficult to proceed with or liquidate the instant business without the permission of the head of △△△△, while threatening Nonindicted 1 to the effect that it may be detained by Nonindicted 1 goes beyond the permissible extent and permissible by social norms. Thus, the crime of intimidation is not changed.

(8) In addition, in a civil procedure, conciliation is a system that allows a judge or a third party, such as a conciliation committee, to intervene in the parties to the dispute, to hear both claims, to present a conciliation proposal, to take into account and compromise various circumstances, and to reach an agreement through mutual concession and compromise so that the dispute can be resolved in a simple and prompt manner, so that the judge may intervene in the procedure. However, in this case, the causal relationship between the defendant’s intimidation and the acceptance of Nonindicted Party 1’s conciliation agreement is not interrupted, since it has already been accepted by Nonindicted Party 1’s public conflict outside court, and the court accepted the conciliation agreement by ascertaining the agreement between the parties, and thereafter, declared the completion of the conciliation agreement and prepared the conciliation protocol.

In light of the fact that the Defendant promised to faithfully carry out the duties of the head of △△△ Office and received support from many residents within the jurisdiction of the △△△ Office and won, the Defendant acquired 1.3 billion won property benefits from the victim Nonindicted 4 association by threatening the victim Nonindicted 1 by using the position of the head of △△△ office for his personal interest at the time of election, and subsequently, at the time of election, it is inevitable to sentence the Defendant’s sentence against the Defendant, taking into account the following factors: (a) the Defendant’s public official’s insolvency as a public official and morality; (b) the damage from the instant crime is ultimately transferred to Nonindicted 4 association members, etc.; and (c) the Defendant appears to have some character as a bribe for the property interest acquired by the Defendant; (d)

However, the punishment as ordered is determined by comprehensively taking into account the following circumstances, including the fact that the defendant did not actually have any profit from the crime of this case, the defendant has a number of criminal punishment recommended by the defendant, but all of them are merely subject to a fine, and other circumstances, such as the defendant's age, character and conduct, family environment, motive for the crime and circumstances after the crime, etc., which are conditions for sentencing

Judges Choi Jin-jin (Presiding Judge)

1) The project aimed at enhancing the utility value as a site and completely improving the residential environment by reasonably dividing the site of 484,620 square meters which is a day-to-day (number 1 omitted) of ○○○○○○○○ Dong, and by establishing various public facilities by organizing the topography and land form.

2) Even if the land for replotting which was used as the land for neighboring living facilities was designated as the land for replotting, such land for replotting alone cannot be deemed unlawful, barring special circumstances, barring special circumstances, barring any such circumstance, the land for replotting is not designated as the land for replotting. On.... according to the appraisal method, three appraisal agencies determined the location and size of the land for replotting according to the price appraised of the land that was allocated before and after the project, and as to the plaintiffs, it can be recognized that each of the land for replotting was designated as the same location as the land for replotting. As such, the plaintiffs' above assertion is without merit, and it cannot be deemed unlawful. The plaintiffs' designation itself against the plaintiffs cannot be seen as illegal.

3) In the case of △△cheon, the consultation with the △△△△ Office is subject to authorization for the execution of the instant project. In addition, in the case of other infrastructure, if the construction completion report was made by Nonindicted 4 association and the public notice of the disposition of replotting was made after the completion of construction, it will belong to the △△ Office from the next day, and therefore, as a viewing development plan, it must be verified as to whether the consultation with the △△△ Office on the infrastructure has been completed

(4) On September 30, 2010, according to the Defendant’s above instruction and additional instruction, the △△△ Office sent a public notice of “special inspection request” as to the viewing development plan, which is the business authorization department of the instant case, and the overall operational status of Nonindicted 4 association in the future. Based on the above public notice, in the viewing development plan and the viewing development plan, there was a fact that the public notice was sent to Nonindicted 4 association twice and other measures were taken.

(5) On November 10, 2010, in accordance with the Defendant’s order, the △△ Office sent a public notice on the viewing development plan and the future “request for cooperation prior to the completion of the construction of the land readjustment and rearrangement project in the △△ Office” to the public notice, and in accordance with the above public notice, there was a fact that the viewing development plan and the public notice were carried out by Nonindicted Cooperative 4

(6) In particular, in the front part of the copy of the recording file on December 14, 2010, the Defendant and his defense counsel asserted that the recording file is highly likely to have been edited because there is an omission in the conversation between the Defendant and Nonindicted Party 1 and the Defendant and Nonindicted Party 1 on the first part of the conversation or the conversation between the Defendant and Nonindicted Party 1 on the litigation at the full bench. In the copy of the recording file on February 10, 2011, there is a part in which the Defendant and Nonindicted Party 1’s conversation is naturally not connected.

See Supreme Court Decision 98Do3169 delivered on March 9, 1999, etc.

Note 8) Supreme Court Decision 2006Do1513 Decided January 18, 2008