2014Gohap230 Violation of the Act on the Aggravated Punishment, etc. of Specific Crimes

A

Anndong case, and a trial for transfer of a ship;

Law Firm B, Attorney C

Law Firm D, Attorney E

Attorney F, G

June 26, 2014

Defendant shall be punished by imprisonment for a term of one year and six months.

20 million won shall be additionally collected from the defendant.

Criminal facts

피고인은 목포시 H, 2층에 있는 토목건축공사업 등을 주된 목적으로 하는 I 주식회사(이하 'I'이라고 한다) 및 철근콘크리트 공사업 등을 주된 목적으로 하는 유한회사 J(이하 'J'이라고 한다) 등을 운영하는 사람이다.

On April 2012, the Defendant: (a) received a request from K (hereinafter referred to as “K”) to provide services to resolve matters related to construction works, such as resolving civil petitions related to the installation of solar power stations, permission to occupy and use roads, etc. in south L, which is promoted by K (hereinafter referred to as “K”); and (b) received a solicitation from NN of M Co., Ltd (hereinafter referred to as “M”) on April 2012 to May 2012, the Defendant intended to construct “M” from N of the directors of “M” (hereinafter referred to as “M”) of “M” in the former and south Q (hereinafter referred to as “each solar power plant of this case”) in order to promptly construct a power plant; and (c) received a request from the head of SP to provide assistance in obtaining permission for development activities from him/her.

On June 21, 2012, the Defendant received cash of KRW 200 million from the office of the above Defendant, which provides that “M’s audit and inspection shall be able to construct solar power plants in U, and assist in obtaining permission for development activities from the head of S Gun promptly.”

As a result, the defendant received money and valuables on the intermediation of matters belonging to public officials' duties.

Summary of Evidence

1. Partial statement of the defendant;

1. Each legal statement of the witness N and T;

1. Partial statement of each prosecutor's protocol of examination of the defendant against the defendant;

1. Statement in the statement prepared by V;

1. Each description of related data, such as J, I, W Copy of Certified Copy of Certified Copy of Resolution, Slar Electric Construction Process, two copies of the contract, and investigation report (K's report on the verification of X's statement at the scene of solar energy); and

Application of Statutes

1. Article relevant to the facts constituting an offense and the selection of punishment;

Article 3 of the Act on the Aggravated Punishment, etc. of Specific Crimes (Options of Imprisonment)

1. Additional collection:

The latter part of Article 13 of the Act on the Aggravated Punishment, etc. of Specific Crimes

Judgment on the argument of the defendant and defense counsel

1. Summary of the assertion

The defendant's KRW 200 million received from N is only a cost for resolving civil petitions in preparation for future civil petitions or a fund for N to be useful from M, and the defendant's custody at N's request is not a money received for arranging permission for development activities related to solar power plants conducted by S military officials.

2. Determination

A. Article 3 of the Act on the Aggravated Punishment, etc. of Specific Crimes is a crime established by "taking or receiving money or goods, etc., under the pretext of arranging matters belonging to a public official's official's duties." As such, the term "mediation" in the above crime refers to the act of delivering the parties' intentions to a public official, promoting convenience to a public official, or helping the parties make a decision in the direction they desire by exercising influence on certain matters belonging to a public official's duties. In this case, the duties of a public official are included in a legitimate act, and there is no need to specify the contents of a mediation, and if money or goods, etc. are received under the pretext of the above mediation, the above crime is established regardless of which mediation is actually conducted.

In addition, whether there is a quid pro quo relationship between the good offices and the money received as a result of the public official’s duties shall be determined by comprehensively taking into account all the circumstances, such as the contents of the good offices, the relationship between the good offices and the interested parties, the degree of profit, the details and timing of receipt of the profit, etc., and it is sufficient that there is a quid pro quo relationship between the good offices and the money received as a result of the good offices and the money received as a result of the good offices. Furthermore, if the nature of the good offices as a result of the good offices

Meanwhile, in a case where: (a) the criminal intent that received money and valuables, etc. from a public official on the pretext of arranging matters belonging to his/her official duties constitutes a criminal offense; (b) there is a strict proof in order to acknowledge such fact; and (c) the criminal intent is denied even when recognizing that the Defendant received money and valuables, etc., it may be proven by means of proving indirect facts that are highly related to the criminal intent by nature of the object (see Supreme Court Decision 2013Do6570, Sept. 12, 2013).

B. According to the evidence duly adopted and examined by this court, the Defendant may be deemed to have received KRW 200 million from M in return for good offices offering convenience, such as arranging interviews with the head of S Gun so that M may obtain permission for development activities related to each of the instant power plants from the head of S Gun as well as resolving civil petitions when constructing each of the instant power plants. Moreover, the above KRW 200 million is indivisiblely combined with the nature of the consideration for resolving civil petitions, as well as the consideration for good offices for permission for development activities, and the nature of the consideration for arranging permission for development activities is inseparably combined. The Defendant and the defense counsel’s above assertion is rejected.

1) The reasons why M had the Defendant take charge of the work related to the construction of solar power plants

① Around the end of 2011, M had a plan to build each of the instant electric power plants with a license from the Minister of Knowledge Economy under the Electric Utility Act. M was a situation where construction and development of each of the instant electric power plants should begin as soon as possible as there was a significant burden on the loaned money in purchasing each of the instant electric power plants, and there was a possibility that subsidies for new and renewable energy businesses, such as solar power plants of the State, will fall.

② Under the National Land Planning and Utilization Act, in order to construct each of the instant power plants, permission for development activities is required from the head of SGun. However, with respect to solar power stations in the range of Y-scale, which were constructed in south L with permission for development activities from the head of SGun, residents filed a civil petition from the end of the end of 2011 due to transmission lines installed without the consent of the manager or owner of state-owned and private land and private land, and the government-owned and public land management agency sent a letter of request for removal to K. In particular, the civil petition by the residents was extended to the beginning of 2012 as a civil petition for the construction of solar power plants itself.

③ On January 1, 2012, K sought permission to engage in development activities of another solar power plant from SGun. However, since the existing civil petition has not been resolved by SGun, K asked that SGun apply for permission to engage in development activities after obtaining consent after obtaining consent after holding a residents’ explanation about the above solar power plant. M also asked SGun about whether an application for permission to engage in development activities was filed on or around April 2012, Southdo Survey Design Office (hereinafter referred to as “Namdo Survey”) which was requested to provide services related to the authorization of each of the instant power plants from M, but the answer was made to the effect that the application for permission to engage in development activities is delayed because there is a large number of civil petitions. Southdo Survey said that M does not need to be able to apply for permission to engage in development activities.

④ On April 2012, the Defendant was requested by K to resolve the foregoing civil petition, obtain permission to occupy and use a road, grant permission for use and profit-making of State property, etc., and continuously construct and complete a power plant. Accordingly, the Defendant obtained permission to occupy and use a road, grant permission for use and profit-making of State property, etc. from the SGun Office and provided services, such as obtaining written consent from residents

Since then, in return for the above services, the Defendant received KRW 80 million from K on November 1, 2012, and KRW 415 million on July 18, 2013.

⑤ On the other hand, since part of the utility poles used to supply electricity to K’s solar power plants has been used for M, the Defendant, around April 2012, became a director of M in order to obtain the consent of M in the course of performing the service requested by K, as seen above, and the N reported that the representative of M performed the duties related to the solar power plant of K as a maintenance of the area where the Defendant operates his business in the SGun. After that, N requested the Defendant, as under the direction of the Z, so that M can be constructed as soon as possible, as K, at each of the instant power plants.

6. As such, around April 2012, M became aware of the Defendant, the largest pending issue related to the construction of each of the instant electric power plants was the civil petition of SGun residents. However, the resolution of civil petitions was a de facto premise for the development permission of Sgun and the construction of each of the instant electric power plants by M., and the ultimate goal of M was to begin the construction of each of the instant electric power plants by obtaining permission from the head of S Gun as soon as possible after obtaining permission for development.

2) Circumstances relating to KRW 200 million received from M

① On June 20, 2012, the amount of KRW 200 million was transferred from the account of the Z to the account of the Z. The said KRW 200 million was divided and transferred to five personal accounts, including AB, who are M employees, in the amount of KRW 10 million or KRW 30 million, and thereafter, the amount of KRW 200,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,00

② On June 20, 2012, the schedule for the balance of funds prepared by M on June 20, 2012, is indicated as “A director’s short-term loans of KRW 200,000,000, S head of cash of KRW 200,000,000. In addition, the e-mail reported by M to AD, China, as the owner of M, was indicated as “the first preparation for the local government,” while the e-mail reported by M to AD, which was the owner of M, appears to mean “the first preparation for the local government” as “the first preparation for the local government, such as entertainment expenses, in Korean.

3) Circumstances relating to interviews between M and M Guns

① After paying KRW 200 million to the Defendant, N asked the head of S Gun to have a personnel interview with the S Gun. The Defendant received a large number of government-funded construction works while operating the S Gun, including I and J, and exchanged with S Gun officials independently, and the Defendant was engaged in election campaign at the time of election in AF election, and there was a friendly relationship with AE to the extent that the Gun was independent of the dongs of AE. After receiving the aforementioned request from M, the Defendant attempted to have a personnel interview with the S Gun. After receiving the aforementioned request from M, the Defendant tolded that M was requested to have a personnel interview with the S Gun Security Office, and received the date of the interview from the S Gun Security Office.

② Around that time, the Defendant applied for an interview to N in S/S S/S S/S S/S, and asked N and T to hold an interview to the S/S/S/S/S/S. After that time, the Defendant told N to the effect that it would prepare for concluding an understanding book.

③ Around the beginning of July 2012, N and T had an interview with the head of S/Gun at the S/Gun office, and the Defendant was present at that place. T proposed to the head of S/Gun to conclude an understanding letter with the purport that part of the profits accruing from each of the instant power plants shall be donated to S/Gun, and that the power plant staff shall be employed as S/Gun residents, and the head of S/Gun directed the head of S/Gun to review the conclusion of the understanding letter.

The above interview between M and the head of the Gun is not recorded in the S Gun interview log prepared by S Gun in 2012.

④ Since July 2012, 2012, M and S Gun provided S Gun with administrative support, such as cooperation in various authorization and permission business, resolution of civil petitions, etc. to promote the above business, and entered into a memorandum of understanding that M contributes 1.5% of the power generation sales to S Gun for ten (10) years at the time of the construction of each of the instant power plants and the success in the commercial operation. M applied for permission for development activities to S Gun through the Namdo survey on July 25, 2012, and the head of S Gun granted permission for development activities on condition that the performance guarantee deposit, etc. was deposited in M, after deliberation by the Seoul Urban Planning Committee.

⑤ As such, the Defendant committed an act of helping M to promote the convenience of M and to make a decision in a direction desired by M by delivering M’s will to SA and arranging an interview with S Gun when obtaining permission to engage in development activities for the construction of each of the instant electric power plants from M, etc.

6) The Defendant asserts that in this court, the Defendant did not commit any act, such as requesting an interview with the SGun Office or drawing the date of the interview. However, in light of the following: (a) the Defendant consistently accepted an investigation agency’s request for the interview with the SGun Office on the part of M, and consistently stated that there was a request for the interview with the SGun Office to change the fact of requesting the interview and the date of the interview; (b) N was made by visiting the date of the interview with the Defendant; and (c) the Defendant was already aware of the date of the interview; and (d) the Defendant was present at the interview with the M and the Gun Office, the Defendant made a consistent statement to the investigation agency that he received the interview and sent the fact of requesting the interview with the SGun Office several times on several occasions, and received the date of the interview, there is more credibility.

4) Circumstances relating to KRW 130 million that the Defendant returned to M

① Around June 2013, an investigation was conducted with respect to the suspicion that Z, T, N, etc. embezzled M’s funds upon the complaint of AD. During that investigation, as seen earlier, it is stated that the sum of KRW 350,000,000 in cash was paid to the S Gun on June 20, 2012 and August 23, 2012 prepared by AC on the schedule of funds balance sheet prepared by AC. As such, it was conducted with respect to whether M was not a bribe to the S Gun.

② On June 13, 2013, the Plaintiff called the Defendant to conduct an investigation into M’s executives and employees by phone calls to the Defendant on June 13, 2013, and said, the Plaintiff returned KRW 100,000 to M’s counsel fees.

③ On June 13, 2013, the Defendant prepared cash by processing as if there was a transaction between WT and a limited liability company (hereinafter “W”) which is a trader, and AG. In other words, the Defendant’s accounting staff transferred KRW 110 million from I to W’s account. He loaned 10 million from AG to W’s account, such as AI, the owner of the land of AG, notified W of the above passbook account, and W transferred KRW 110 million to 10,000,000,000,000, which was remitted as above, to 10,000,000 won, such as the above AI, to the above AI and 10,000,000 won, and 10,000,000,000 won, more than 3,000,000,000 won, and only 3,00,000,000 won, more than 3,000,00.

(v) the perception and intention of the Parties on the pretext of good offices;

① As such, the ultimate purpose of M is to construct and develop each of the instant power plants and ancillary facilities with permission for development from the head of S Gun. At the time, due to K’s civil petitions related to solar power plants, M did not receive permission for development activities by the S Gun Office; M prepared cash 200 million won and delivered it to the Defendant in secret by means of money laundering; M’s accounting and reporting materials are money paid to the head of S Gun; M requested for an interview with the head of S Gun immediately after the Defendant paid KRW 200 million to the Defendant, it cannot be deemed that there was only an intention to resolve a civil petition at the time of the Defendant’s payment of KRW 200 million to the Defendant; and furthermore, it seems that M had expressed an intention to request for assistance in the authorization and permission related to the instant power plant, such as helping the Defendant receive an application for permission for development activities; and furthermore, helping the Defendant obtain permission for development activities.

② From the perspective of the Defendant, the Defendant was commissioned to promptly construct each power plant of this case from M, and was performing services related to various authorizations and permissions as well as resolution of civil petitions at the time of receiving KRW 200 million in consideration of the fact that the Defendant received a request from M to arrange for an interview with the head of the Gun immediately after receiving KRW 200 million in consideration of the fact that: (a) the Defendant respondeded to an interview with the head of the Gun after receiving KRW 200 million in advance; and (b) the Defendant prepared cash as a means of money laundering and returned KRW 130 million in consideration of the fact that the Defendant received a request from M to return money in return for attorney’s fees; (c) it is reasonable to deem that the Defendant either recognized the intention of M or did not recognize it at least at least, as well as to support for the authorizations and permissions of each power plant of this case, such as permission for development, at the time of receiving money from M.

Reasons for sentencing

The Defendant received a large amount of money under the pretext of mediating matters belonging to the public official’s duties, such as permission for development activities on each of the instant power plants, which the Defendant intends to construct by using the friendship relationship with the SGun public officials or influence thereon, and went through the practical arrangement, such as arranging an interview between M and the head of the S Gun. Accordingly, the fairness in performing public official’s duties and the purchase of the price and the trust in the general society was significantly damaged. The Defendant had already been punished for the duties of the S Gun public officials, but again committed the same kind of crime.

However, in the case of KRW 200 million received by the defendant, the nature of the consideration for the resolution of the civil petition is indivisible in addition to the nature of the consideration for the mediation of the duties performed by the public official.

In full view of the above circumstances, the sentencing conditions, including the defendant's age, character and conduct, and circumstances after the crime, shall be determined as per Disposition.

The acquittal portion

1. Summary of the facts charged

On August 24, 2012, the Defendant received cash of KRW 150 million from the Defendant’s office located H and 2nd floor to the effect that M will settle civil petitions to enable M to build solar power plants in U, and that M will receive permission for development activities promptly from S Gun. Accordingly, the Defendant received money and valuables for arranging matters belonging to public officials’ duties.

2. Determination,

A. The evidence supporting the fact that the Defendant received KRW 150 million in cash from N on August 24, 2012 lies in N’s statement and that the Defendant deposited KRW 170,490,000 in cash in the Defendant’s account from August 30, 2012 to September 28, 2012 (hereinafter “the details of cash deposit”).

B. We examine N’s statement. According to the following circumstances acknowledged by the record, N’s statement that the Defendant gave cash of KRW 150 million on August 24, 2012 is difficult to believe it as it is.

1) On August 23, 2012, N sent KRW 150 million to the Defendant at the investigative agency, N made a statement that: (a) on August 23, 2012, AC, a staff member of M, received money from AC and received money from AC, and then AC sent KRW 150,000,000 to the Defendant, waiting at its bottom; and (b) thereafter, AC made a statement that: (c) on August 23, 2012, a prisoner of war was sent money to N and returned to Seoul on the following day after N and drinking, and (d) N reversed the previous statement in accordance with AC’s statement and received money from AC on August 23, 2012; and (c) subsequently, C made a statement that the following day was returned to the Defendant.

2) N stated that the investigative agency has delivered to the Defendant a full amount of KRW 150 million.

A. After delivering 150,000,000 won to the defendant who was requested by the investigative agency to submit the account details, the defendant was returned from the defendant and deposited 59,000,000 won to the securities account.

The statement was reversed.

3) While the circumstances that N gave KRW 150 million to the Defendant, it stated that no memory is made as to where the Defendant brought about KRW 60 million to the part of the Defendant’s return of KRW 60 million.

4) According to the instructions of the Z, AC attempted to deliver 150 million won to the Defendant along with the N along with the recording. However, N stored stored in AC’s attendance and recording on the ground that the Defendant’s contact with another person and the recording are not intentionally correct.

C. We examine the records. The sum of KRW 170,490,000 in cash from August 30, 2012 to September 28, 2012 is recognized as having been deposited into the Defendant’s account. However, most of the said money is recognized as having been deposited into the Defendant’s account by a company operating the Defendant after entering into a subcontract with another cost company in violation of the prohibition of sub-subcontract, and then entering into a processing transaction through a transportation company, etc. and then received money transferred by a transportation company, etc. from the original contractor in cash. Accordingly, it is insufficient to recognize that the Defendant received KRW 150,000 from N on August 24, 2012.

3. Conclusion

In the end, this part of the facts charged constitutes a case where there is no proof of criminal facts, and thus, the innocence should be pronounced pursuant to the latter part of Article 325 of the Criminal Procedure Act. However, as long as the defendant is found guilty of violating the Act on the Aggravated Punishment, etc. of Specific Crimes (re

Freeboard of the presiding judge and judge

Judges Park So-young

Judges, Senior Superintendent-General