Defendant 1 and four others

Defendant 2 and one other and the prosecutor

Definites

(A)PP & 2 others

Seoul Central District Court Decision 2007Gohap877 Decided October 9, 2008

Defendant 2 and 4’s appeal and prosecutor’s appeal against the Defendants are dismissed, respectively.

Defendant 2 in the fifth order of the judgment of the court below is corrected to add “Defendant 2’s violation of the Framework Act on the Construction Industry” next.

1. Summary of grounds for appeal;

(a) A prosecutor;

(1) misunderstanding of facts or misapprehension of legal principles as to the violation of the Framework Act on the Construction Industry by Defendants 1, 2, and 5

(A) The time when the above Defendants remitted money to Nonindicted 4 to Nonindicted 5 in order to exempt Nonindicted 5 from the obligation. Thus, this part of the crime was committed after Nonindicted 4 won was elected as the president of the association, and Nonindicted 4 constitutes the ordering person as provided in Article 38-2 of the Framework Act on the Construction Industry. However, the lower court erred by misapprehending the legal doctrine by misapprehending the fact that Nonindicted 4 was a candidate who was not elected.

(B) In light of the provisions of Articles 110 through 112 of the Criminal Procedure Act, and Article 149 of the Act on the Refusal of Testimony, the court below erred by misapprehending the legal principles, thereby admitting the scope of the defense counsel’s right to defense counsel as excessive, and thereby making it difficult to recognize that Defendant 1 and 2 provided unlawful solicitation and financial benefits in relation to the conclusion of a contract agreement or the supply and demand of construction works to Nonindicted 4, on the ground that the submission of the written opinion of this case infringes on the above rights, and thus, the admissibility of evidence was denied unless the above Defendants permitted seizure or consented to use it as evidence. In light of the provisions of Articles 110 through 112 of the Criminal Procedure Act and Article 149 of the same Act, which are the limitation provisions on seizure, the court below erred by misapprehending the legal principles, thereby failing to exhaust all necessary deliberation.

(C) According to the legal opinion, etc. prepared by Nonindicted 30 Law Firm and sent it to Defendant 5’s legal team, Defendant 5 recognized the fact that Nonindicted 6 Company and Nonindicted 8 Company subsidized election campaign expenses in a alternate manner for Nonindicted 4’s election campaign in relation to the election of the president of the association. However, the lower court erred in determining the facts by denying the admissibility of the above legal opinion.

(2) The defendant 1 and 2's offering of a bribe to the defendant 3 and the defendant 3's violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (Bribery)

In light of the fact that Defendant 3 reversed the statement on the amount of service charges, the time when Defendant 2 paid money to Defendant 3, the value of service provided by Defendant 3, and the behavior in other business places of Defendant 5 Co., Ltd., even though Defendant 5 Co., Ltd. recognized that money granted to Defendant 3 was a bribe given to exclude the participation of the competitor, the lower court erred by recognizing only the above Defendants’ statement as it is.

(3) misunderstanding of facts as to the offering of a bribe to Defendant 1 and 2 against Defendant 4 and the violation of the Act on the Aggravated Punishment, etc. of Specific Crimes by Defendant 4

In light of the fact that Defendant 2 personally lent money to Defendant 4, there is no reason to offer the bill in the name of Defendant 5 corporation as collateral, Defendant 2 prepared a false lease contract at the time of delivery of money, Defendant 4 did not repay the money up to now, Defendant 2 did not take any legal measures to recover money, and Defendant 2 did not take any legal measures to collect money, the money given by Defendant 1 and 2 itself constitutes a bribe. However, the court below erred by recognizing the above money as the name of the above Defendants’ statement, and judged the above money as a bribe and determined the amount equivalent to the financial profit of the above loan as a bribe.

(4) Claim on unreasonable sentencing

The sentence sentenced by the court below to Defendant 2 and 4 (Defendant 2: 2 years of suspended sentence in August, and Defendant 4: 3 years of suspended sentence and additional collection in June of one year and six) is too unhued and unreasonable.

B. Defendant 2

(1) Grounds for misunderstanding of facts

Although there was no fact that the above Defendant made a solicitation for Defendant 4 to be selected as a contractor in connection with the △△ Three Zone Improvement Project, the lower court erred by misapprehending the fact that the instant loan is deemed to have business relationship and quid pro quo on the grounds of the timing of payment of the instant loan, the financial situation of Nonindicted Co. 1, the partial difference between Defendant 2 and Defendant 4, and the general provisions of the amended service contract under the Urban Improvement Act and the amended service contract.

(2) The assertion of unfair sentencing

The sentence imposed by the court below against the above defendant is too unreasonable.

C. Defendant 4

(1) Grounds for misunderstanding of facts

Since the above defendant is the representative director of a corporation and the person who borrowed money is a non-indicted 1 corporation, it cannot be the subject of bribery. Even if the subject of bribery is the subject of bribery, there is no relevance to duties, and since there is no solicitation or convenience from the defendant 2 or the defendant 5 corporation, the financial profit equivalent to the interest is not received in relation to the duties, and therefore the bribery cannot be established.

(2) The assertion of unfair sentencing

The sentence imposed by the court below against the above defendant is too unreasonable.

2. Determination on the grounds for appeal

A. As to the prosecutor's assertion of mistake or misapprehension of legal principle

(1) Judgment on the misconception of facts or misapprehension of legal principles as to the violation of the Framework Act on the Construction Industry by Defendants 1, 2, and 5

(A) Whether Nonindicted 4, the other party to the provision of property benefits, constitutes “the ordering person, contractor, subcontractor, or interested person” as stipulated in Article 38-2 of the Framework Act on the Construction Industry

Article 38-2 of the Framework Act on the Construction Industry provides that "no project owner, contractor, subcontractor, or interested person shall acquire or provide property or property gains by illegal solicitation in connection with the conclusion of a contract or the execution of a construction work," and Article 95-2 of the same Act provides that "any person who has acquired or provided property or property gains by illegal solicitation in violation of Article 38-2 shall be punished by imprisonment for not more than five years or by a fine not exceeding 50 million won" is prohibited by the project owner, contractor, subcontractor, or interested person from receiving money and valuables in connection with the receipt and order of the construction work and the execution of the construction work, and the purpose is to prevent problems such as defective construction by eradicating irregularities in the number of construction contracts and the execution of the construction work and to promote the sound development of the construction industry by punishing such violations (Supreme Court Decision 2008Do2591 Decided November 13, 2008).

As to the instant case, according to the facts charged, the other party to the provision of property profits is Nonindicted 4, the head of the association of the ▽▽▽▽▽▽△△△△ Housing Redevelopment and Improvement Project Association. Nonindicted 4 was elected on September 14, 2005 as the head of the association of the association of the ▽▽▽▽▽▽▽△△△△△△△ Housing Development and Improvement Project Association, and Defendant 5 corporation, through Nonindicted 7, the representative director of Nonindicted 6 corporation (hereinafter only Nonindicted 6 corporation), who performed the election campaign of Nonindicted 4 on November 30, 2005, by remitting KRW 152,174,000 to Nonindicted 5 (hereinafter only Nonindicted 8 corporation), and let the representative director of Nonindicted 8 corporation (hereinafter referred to as Nonindicted 4 corporation), who carried out the election campaign of the said Nonindicted 4 on behalf of the head of the association. Article 2 subparag. 7 of the Framework Act on the Construction Industry, provides that the term “project owner” refers to a person who contracted construction works to the constructor, and the above head of the redevelopment project association.

Therefore, the prosecutor's ground of appeal on this part is with merit.

(B) Whether the instant written opinion, etc. prepared by a lawyer is admissible

(i)application for prosecutor’s evidence;

With respect to the acts of Defendants 5, executives and employees related to this part of the facts charged, the prosecutor filed an application for the written opinion prepared by Nonindicted 9 Attorney-at-law belonging to Nonindicted 30 Law Firm (hereinafter the instant written opinion) that contains legal advice from Nonindicted 30 Law Firm (hereinafter the instant written opinion), and each written opinion written by the prosecutor about Nonindicted 2 and 3 that was examined by the investigative agency, on the premise that the investigation agency confirmed the contents of the instant written opinion (hereinafter the instant written opinion and the aforementioned written statement together, were combined).

2) The provisions regarding confidentiality between the right to counsel and the client under the current law;

In relation to the right to assistance of counsel, Article 12(4) of the Constitution provides that “any person who is arrested or detained shall have the right to prompt assistance of counsel.” The Criminal Procedure Act provides that “The right to receive assistance of counsel shall have the right to receive assistance of counsel (Articles 33 and 282), the right to receive assistance of counsel (Articles 33 and 282), the right to meet and communicate with counsel (Article 34), the right to peruse and copy investigation records (Article 35).

With respect to confidentiality between a defense counsel and a client, the first sentence of Article 26 of the Attorney-at-Law Act provides that "no person who is or was an attorney-at-law shall divulge any confidential information learned in the course of performing his/her duties," and Article 317 (1) of the Criminal Act provides that an attorney-at-law shall be punished as a crime of divulgence of occupational secrets in cases where the attorney-at-law, etc. divulges another's secret which he/she has learned in the course of performing his/her duties, and the main sentence of Article 112 of the Criminal Procedure Act provides that a seizure of another's secret may be refused by an attorney-at-law, etc. with respect to goods held or kept by him/her on commission of his/her duties. The main sentence of

c) Determination

In light of the above legal principles, the court below can normally seek advice from an attorney as to whether his act constitutes a violation of the law or what legal provision should be prepared. In such a case, in order for the client to sufficiently obtain assistance from an attorney in terms of preparing for the risk of criminal prosecution and setting up against forced investigation, it should be premised on the trust of confidentiality between the counsel. According to the provisions on confidentiality between the counsel and the client under the above current law, the counsel may not disclose the client's secrets and refuse to give testimony. However, apart from the fact that the client's refusal to give testimony by violating his/her duty not to divulge confidential information is likely to cause criminal punishment, the court below acknowledged that the client's disclosure of confidential information against the client's own will would not prevent disclosure of confidential information, and even if the counsel did not divulge confidential information, the court below held that the defendant's legal advice or legal counsel should be restricted to the disclosure of confidential information between the client and the client's own legal advice or legal counsel's disclosure of confidential information under the current law, and thus, determined that the defendant's legal advice or legal counsel should be restricted to use of evidence.

In addition, the court below held that the written opinion of this case is inadmissible unless the authenticity of establishment is recognized by the attorney-at-law belonging to the law firm 30, and that it is found in the process of search and seizure of the defendant 5's office on February 7, 2007 pursuant to the above legal principles, so long as the defendant 5's act of the defendant 5's corporation or officers and employees related to the above facts charged includes legal advice from the non-indicted 30 law firm, the client's act constitutes an exchange of secret opinion for the purpose of legal advice between the counsel and the client. Thus, even if the defendant 5 corporation which is deemed to be the client did not allow the seizure of the written opinion of this case and the above client's consent to use it as evidence, the court below's written opinion of this case cannot be admitted as evidence if it is acknowledged that the defendant 5 corporation which is the client and the client are included in the defendant 1 and the defendant 2's right to use the written opinion of this case and its contents cannot be admitted as evidence.

As above, it is reasonable for the court below to view that the measure denying the admissibility of the written opinion, etc. of this case on the basis of the defense counsel-applicant privilege cannot be used as evidence of guilt. Therefore, the prosecutor's ground of appeal on this part is without merit.

(C) Whether the above Defendants may be deemed to have provided property or property benefits to Nonindicted 4 in making an illegal solicitation regarding the conclusion of a contract agreement or the supply and demand of construction works

① First, even though Defendant 1 was deemed to have worked as the head of the Housing Project Headquarters of a housing company of Defendant 5, the evidence submitted by the prosecutor alone is insufficient to recognize the fact that Defendant 1 participated in the above crime, and there is no other evidence to prove otherwise.

(2) On the following grounds, as to Defendant 2:

According to the facts charged of the violation of the Framework Act on the Construction Industry, the amount of KRW 62,370,00 on October 27, 2005 was remitted from the corporate account of Nonindicted Co. 5 (Defendant 2) to the corporate account of Nonindicted Co. 6 (Nonindicted Co. 7), and KRW 249,480,000 on December 13, 2005, and part of the amount was remitted from the corporate account of Nonindicted Co. 6 Co. 6 (Nonindicted Co. 7) to the corporate account of Nonindicted Co. 8 (Nonindicted Co. 5) to KRW 100,000,000 and KRW 52,174,000 on November 30, 205 to the corporate account of Nonindicted Co. 8’s corporate account of Nonindicted Co. 4 (hereinafter “Nonindicted Co. 5”) for the promotion of Nonindicted Co. 4’s election campaign for the head of the association, and Defendant Co. 34,500,000 won was remitted.

However, according to the evidence duly adopted and examined by the court below, Defendant 2 worked as the head of △△ business office of Defendant 5 until October 14, 2005, and the latter is found to have been appointed as the head of △△△ business office on the following day. Therefore, the same applies to the case where Defendant 2 transferred the account from Nonindicted Company 6 to Nonindicted Company 8 to Nonindicted Company 5, as well as the case where Defendant 5 was transferred to Nonindicted Company 6 from Nonindicted Company 5 to Nonindicted Company 6. Thus, even if the above facts charged were that Defendant 5’s funds were used in repayment of Nonindicted Company 4’s debt, in relation to the conclusion of the contract, the person who provided property or pecuniary benefits to Nonindicted Company 4 was not Defendant 2, but Nonindicted Company 10, the successor, and Defendant 2 cannot be deemed to have been involved in the execution of the above charges, and even if Defendant 2 actually received a preliminary report on the execution of the contract with Nonindicted Company 6 and did not constitute the act of providing funds in itself.

As such, insofar as Defendant 2 cannot be deemed to have participated in the conduct of the act of giving property or property benefits to Nonindicted 4 in relation to the conclusion of a contract for work, only the issue is whether Defendant 2 bears the responsibility as a co-principal. However, the co-principal under Article 30 of the Criminal Act is a subjective element for establishing a co-principal, and it is necessary to have committed a crime through a functional control based on a co-principal’s intent and objective requirement, and the intention of co-processing is insufficient to recognize another person’s criminal act but to accept it without restraint. The purport of co-principal is to move one another’s criminal act to the execution of one’s own will by taking advantage of another’s criminal act. When one of the co-principals in the co-principal’s co-principal’s co-principal’s relation comes from the conspiracy’s relation before the other co-principal reaches the conclusion of the contract, it is not necessary for the two co-principal to actively take charge of removal of the influence of the other co-principal’s criminal act as a co-principal’s relation.

Therefore, even if there was a public contest relationship between Defendant 2 and Nonindicted 7 and Nonindicted 4, the ordering person, in relation to the conclusion of the contract, to give property or property benefits, Defendant 2, one of the public bidders, who is the defendant 2, who is the one of the public bidders, before the execution act (as soon as possible, it is interpreted that the execution act was carried out on October 27, 2005, when the amount was transferred from the corporate account of Nonindicted Company 5 to the corporate account of Nonindicted Company 6), was transferred from the corporate account of Nonindicted Company 6 to the corporate account of Nonindicted Company 6.), and Nonindicted 10 was left from the public contest relationship by leaving his office. Accordingly, it is not liable as a co-principal for the subsequent act of another public bidder. Meanwhile, in relation to the conclusion of the contract, since the public contest relationship was established to give property or property benefits to Nonindicted 4, who is the ordering person, and thus, it can be said that the Defendant 2 did not actively seek the return of property benefits from the public contest to Nonindicted 5.

Ultimately, Defendant 2’s act of the facts charged after being left in △△ business place, Defendant 5, etc., shall be deemed to have been performed by the new public offering relationship established between Nonindicted 10, a successor, and Nonindicted 7 and 5.

③ Finally, the facts charged against Defendant 5 corporation are premised on Defendant 1 and Defendant 2, who is the employee of Defendant 5 corporation, committed the act of violating the Framework Act on the Construction Industry. As seen above, it is impossible to recognize them. Thus, the facts charged above also constitute a case where there is no proof of crime.

(D) Therefore, the lower court determined that Nonindicted 4 was a candidate who was not elected and did not correspond to the ordering person under Article 38-2 of the Framework Act on the Construction Industry, and committed an unlawful act by misapprehending the legal principles. However, inasmuch as the lower court found the above Defendants not guilty on the ground that the evidence submitted by the prosecutor alone was insufficient to recognize that the above Defendants committed this part of the crime, the lower court’s measures are justifiable. Accordingly, the Prosecutor’s appeal on this part is without merit.

(2) The judgment on the assertion of mistake of facts as to the offering of a bribe to Defendant 1 and 2 against Defendant 3 and the violation of the Act on the Aggravated Punishment, etc. of Specific Crimes by Defendant 3

Examining the evidence of this case in light of the records, the court below's decision that Defendant 1 and 2 delivered money to Defendant 3 as an executive officer of the rearrangement project operator in relation to the duties of Defendant 3 so that Defendant 5 and 2 can be selected as the contractor of △△ Zone 1, based on the evidence judgment as stated in its holding is just and acceptable, and there is no other evidence to acknowledge this, and there is no error of law that affected the conclusion of the judgment by misunderstanding facts due to the violation of the rules of evidence as pointed out by the prosecutor in the judgment below.

Therefore, the prosecutor's ground of appeal on this part is without merit.

(3) The judgment on the assertion of mistake of facts as to the offering of a bribe to Defendant 1 and 2 against Defendant 4 and the violation of the Act on the Aggravated Punishment, etc. of Specific Crimes by Defendant 4

Examining the evidence of this case in light of the records, it is difficult for the court below to recognize the fact that Defendant 1, who was the head of the housing project headquarters in Seoul Special Metropolitan City, e.g., the defendant 5 corporation head of the housing project headquarters in collusion with Defendant 2, delivered a bribe to Defendant 4, or Defendant 2 delivered a bribe of KRW 330 million to Defendant 4 without Defendant 2’s intention to receive a refund. However, there is no other evidence to acknowledge it. However, it is reasonable to deem that the contents of the bribe offered by Defendant 2 are not the money itself delivered, but the financial interest of the money, namely, economic interest that can use the money borrowed without interest, which is an economic interest that can receive financial convenience, and therefore, it is reasonable to deem that Defendant 1’s delivery of the bribe to Defendant 4. As to Defendant 2’s delivery of the bribe of KRW 330 million to Defendant 4,000,000 and the bribe of KRW 3330,000,000,00.

Therefore, this part of the Prosecutor's ground of appeal is without merit.

B. As to Defendant 2’s assertion of mistake of facts as to the delivery of a bribe to Defendant 4 and Defendant 4

Examining the evidence of this case in light of the records, the court below found that the act of Defendant 2, who was the representative director of Defendant 4, was related to the duty of Nonindicted Company 1, as the maintenance business entity, and caused Defendant 2 to borrow KRW 330 million by offering the bill as collateral for Defendant 5, and it was insufficient to recognize that Defendant 2 offered money to Nonindicted Company 1 without the intention to refund the above KRW 330 million to Defendant 2,000,000,000 to Defendant 333,000,000,000 won. Accordingly, the court below found that Defendant 2’s contents of the bribe offered by Defendant 2, not the loan itself, was an economic profit that Defendant 4 could use the money with the maturity of one year as the repayment period agreed by the parties, and that financial convenience was provided to Defendant 4 and that Defendant 4’s bribery was not a legitimate violation of the rules of evidence, and thus, it did not err in the judgment of the court below.

Therefore, the above defendants' assertion of mistake of facts is without merit.

C. As to the defendant 2 and 4's assertion of unfair sentencing

On the other hand, although the above defendants' act of accepting bribe and accepting bribe constitutes a crime of this case in the position of the head of the business office of the defendant 5 corporation and the fact that the defendant 4 appears to have committed the crime of this case in a situation where the operation of the company is difficult, the above defendants' act of damaging social trust in the fairness of the performance of duties by the management entity specialized in improvement projects, which is regarded as public officials, and not less than the liability. Although the given bribe itself is not the loan itself but the loan itself, the amount of the loan is 20 million won, and the loan interest has not been recovered at all until four years have passed since the due date, and the above defendants' act of denying the character of the fund provided by the above defendants, considering various circumstances revealed in the evidence, records and trial process of this case, such as the age, character and conduct, family environment, etc. of the above defendants and the sentencing conditions as stipulated in Article 51 of the Criminal Act, and considering the above circumstances, the court below's decision that the above defendants' act of accepting bribe and accepting bribe is inappropriate and inappropriate.

Therefore, this part of the Defendants’ ground of appeal is without merit.

3. Conclusion

Therefore, the appeal filed by Defendant 2 and 4 and the appeal filed by the prosecutor against the Defendants is dismissed under Article 364(4) of the Criminal Procedure Act on the grounds that all of the appeals filed by the Defendants are without merit, and each of them is dismissed under Article 364(4) of the Criminal Procedure Act and the decision of the court below is ordered to be corrected by adding it ex officio, since it is obvious that the subsequent statement of Defendant 2’s “Defendant 2’s violation of the

Judges Kim Chang-suk (Presiding Judge)