Defendant 1 and six others

Defendants, Prosecutor

The type and leather, the completion of the seeds and specifications, the transplant of a prosecution, and the replacement of a new trial;

Law Firm Han-han et al.

Seoul Central District Court Decision 2014Gohap474, 542 (Joint), 616 (Joint), 668 (Joint), 821 (Joint) Decided November 6, 2014

Of the judgment of the court below against Defendant 1, the part on the crime Nos. 1, 2, and 5-A of the judgment of the court below as to Defendant 2, Defendant 3, Defendant 4, and Defendant 5 of the judgment of the court below is reversed.

Defendant 1 shall be punished by imprisonment with prison labor for two years, by imprisonment for one year, by imprisonment for Defendant 3, by two years, by imprisonment for Defendant 4, and by fine for 6,00,00 won for Defendant 5 (Defendant 4).

Where Defendant 5 (Defendant 4) fails to pay the above fine, the above Defendant shall be confined in a workhouse for a period calculated by converting 200,000 won into one day.

However, for two years from the date this judgment became final and conclusive, the execution of a sentence against Defendant 3 shall be suspended.

52,883,561 won shall be additionally collected from Defendant 4.

Defendant 1’s appeal against the part of the crime No. 5-B of the judgment below, Defendant 6 and Defendant 7’s appeal and prosecutor’s appeal are all dismissed.

From among the facts charged against Defendant 1 and Defendant 3, the violation of the Act on the Aggravated Punishment, etc. of Specific Crimes and Defendant 2 are acquitted.

1. Summary of grounds for appeal;

A. Defendants

1) misunderstanding of facts or misapprehension of legal principles

A) Part on the violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (Mediation) by Defendants 1, 2, and 3

(1) Whether the crime of good offices is established

(A) The crime of good offices taking place is established when another person acts as a broker, and the defendant is a substantial project undertaker of the ○○○-scopic exhibition business (hereinafter “instant business”), but the court below, which deemed another person’s business as another person’s business on the ground that the business, such as casino experience centers, which is part of the instant business, is conducted by the defendant 5 (the defendant 4).

(B) The fact that the defendant received 2 billion won from the defendant 5 (the defendant 4) is only the expenses necessary for the promotion of the project, and that the defendant's decision is erroneous in matters of fact that it is not the expenses for the solicitation or mediation related to the authorization and permission.

(2) The public recruitment relationship and the legality of collection by Defendant 2 and Defendant 3

(A) The Defendants only introduced Defendant 5 ( pursuant to the Act on the Aggravated Punishment, etc. of Specific Crimes (Aggravated Punishment, etc. of Specific Crimes) to Defendant 1, and there was no conspiracy for Defendant 1 to commit the crime.

(B) The Defendants received KRW 60 million from Defendant 1 and KRW 40 million are the name of the office establishment cost and operating expenses set up in ○○○○ to carry out the instant business, or are under the pretext of transportation expenses used to return to and from Daejeon to ○○ and Seoul for carrying out the instant business. Nevertheless, the lower court’s collection of each of the above amounts from the Defendants is unlawful.

B) Violation of the Attorney-at-Law Act and attempted fraud by Defendant 3

On April 18, 2011, the Defendant knew that Defendant 5 (Defendant 4: Defendant 5) was arrested by embezzlement to the Daejeon District Public Prosecutor’s Office, and attempted to recommend an attorney-at-law through the offender, and there is no fact that Nonindicted Party 2 deceivings Nonindicted Party 2 to acquire KRW 100 million or requests money under the pretext of intermediation.

C) The part concerning the offering of bribe by Defendant 4 in violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (Bribery) and Defendant 5 (Counterparty 4)

(1) On the renewal of a criminal intent: Defendant 4, Defendant 5 (Counter-board: Defendant 4)

Defendant 4’s free lease of an apartment bond (hereinafter “the apartment house of this case”) from Defendant 5(Defendant 4) is an act of offering property benefits on or around March 201. Therefore, Defendant 4’s act of offering property benefits is completed by taking account of the fact that the criminal intent of giving property in breach of trust was renewed due to the preparation and delivery of the formal lease contract for the apartment of this case on or around July 2011, considering that the criminal intent of giving property in breach of trust was renewed due to the preparation and delivery of the formal lease contract for the apartment of this case, and thus, Defendant 4’s crime of violating the Act on the Aggravated Punishment, etc. of Specific Crimes (Bribery) and Defendant 5 (Defendant 4) constitutes each crime of offering bribe to Defendant 4.

(2) The method for calculating the amount of profit: Defendant 4

The amount of property gains in the crime of bribery must be calculated by the most favorable method to Defendant 4. Therefore, even though the amount of the loan interest and the amount equivalent to the loan of KRW 150 million, which is the market price at the time of the crime, should be calculated by the profit amount, the calculation of the profit amount by the method of calculating the monthly rent without the deposit constitutes an erroneous determination of facts

D) The part on Defendant 6’s fraud

On February 25, 2011, the Defendant had the ability to implement an agreement with the ○○○○○○○○○ Do governor related to the instant business, and was actually obligated to perform the instant business and the obligations under the agreement. However, the Defendant was failed to perform the business due to the occurrence of the subsequent event, and at the time of receiving the money from the victims, the Defendant did not have the intention to acquire the money.

E) Defendant 7’s fraudulent part

At the request of the victims, there is only a fact that the victims and the defendant 6 have mediated to the south of the victims, and there is no fact that the victims have conspired with the defendant 6 or by deceiving the victims.

2) Unreasonable sentencing (Defendants)

The sentence of the court below is too unreasonable.

(b) Conducting inspections (unfair punishment);

The sentence of the court below against the defendant 6 and the defendant 7 is too unhued and unfair.

2. Determination

A. Judgment on misconception of facts or misapprehension of legal principles

1) Part on the violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (Mediation) by Defendants 1, 2, and 3 (hereinafter “Defendant 1, etc.”)

A) The judgment of the court below

Based on the evidence duly admitted and examined, the lower court determined that Defendant 1 received money from Defendant 5 (Defendant 4) under the pretext of arranging various kinds of permits and permits related to the instant project, such as the drums and casino experience center, and that Defendant 2 and Defendant 3 committed the crime of taking good offices in collusion with Defendant 1.

(1) Consideration for the solicitation or intermediation related to authorization or permission

Defendant 1, among the projects included in the instant project to Defendant 5 (Large: Defendant 4), puts emphasis on the relationship with ○○○ Governor and the influence on the public officials of ○○○○○. Defendant 5 (Defendant 4) agreed to guarantee exclusive business rights, such as a casino visitor center, to the purport that the amount paid by Defendant 5 (Defendant 5: Defendant 4) will be used as a voiced money used for the promotion of the project. Defendant 5 (Defendant 4: Defendant 4) may be deemed to include the nature of funds necessary for the promotion of the project in addition to the arrangement act remitted to Defendant 1. However, since the nature of the funds necessary for the promotion of the project as a consideration for the arrangement act of KRW 2 billion and the nature of funds necessary for the promotion of other projects are indivisible, the entire arrangement act has the nature of an indivisible nature as consideration for the arrangement act.

(2) Other person's business;

Since the subject of the instant project is Main SPC, Defendant 1 cannot be deemed to be the subject of the project, and Defendant 1 also recognized that Defendant 1 did not intend to participate in the instant project as an investor or a manager, and Defendant 1’s business, such as the casino experience center, etc., whose business was conducted by Defendant 5 (PP: Defendant 4) after obtaining authorization and permission, is the business conducted by Defendant 1, and Defendant 1 cannot be deemed to have a business relationship with Defendant 5 (PP: Defendant 4).

(3) The public offering relationship between Defendant 2 and Defendant 3

Defendant 2 and Defendant 3 made a statement to the effect that “non-funds” or “business promotion expenses,” etc. need to be granted to Defendant 5 (Defendant 4: Defendant 4) in order to guarantee business rights, such as casino experience centers, Defendant 1 and Defendant 3 performed a certain role in the crime of intermediary taking measures, such as gathering opinions from Defendant 5 (Defendant 4), and Defendant 1 received part of the money received from Defendant 5 (Defendant 4: Defendant 1: Defendant 4) and distributed or promised to receive part of the share of Core PC, which was guaranteed by Defendant 5 (Defendant 4).

B) Determination of the immediate deliberation

(1) Relevant legal principles

The crime of arranging or taking over money or goods is established under Article 3 of the Act on the Aggravated Punishment, etc. of Specific Crimes. It generally refers to a crime of offering or receiving money or goods under the pretext of arranging matters belonging to the duties of a public official. As such, the term "mediation" in the above crime refers to an act of delivering the intention of a party to a certain matter to the public official, or helping a decision to be made in the direction of a party at his/her request or by exercising influence upon the public official's request or exercising influence on a certain matter belonging to the duties of a public official (see, e.g., Supreme Court Decision 201Do1354, Jan. 12, 2012). In such cases, a public official's duties include a legitimate act of performing duties, and there is no need to specify the counterpart or content of mediation, and if a person receives money or goods under the pretext of mediation as above, regardless of which actually arranging it is established (see, e.g., Supreme Court Decision 2010Do1354, Jan. 12, 2

Meanwhile, “Referral of matters falling under the duties of public officials” under Article 3 of the Act on the Aggravated Punishment, etc. of Specific Crimes shall be for another person’s business, other than for himself/herself (see, e.g., Supreme Court Decision 2010Do2554, Apr. 29, 2010). Where the defendant concludes a partnership agreement with another person and conducts business activities against a public official in order to achieve the common purpose in the partnership relationship, it may not be deemed as referral for another person’s business. However, if the partnership agreement merely has the form or appearance to facilitate the referral of the defendant, it shall be deemed as referral for another person’s business, other than the defendant (see, e.g., Supreme Court Decision 2013Do464, Aug. 23, 2013).

(2) Determination as to whether good offices are arranged or not

According to the evidence duly adopted and investigated by the court below and the trial court, the following circumstances may be recognized:

(A) Summary of the instant project

① On October 18, 2010, Defendant 1 was commissioned as an “investment inducement adviser” by the ○○ Do Governor, and the private business entity was attracting a total of KRW 13,600,000,000 from ○○○ Do to lease KRW 5,100,000 from ○○ Do, and requested for the instant business to build a complex tourism complex. The instant business was implemented by means of civil and government joint development, and ○ Do was in charge of various types of authorization and permission, approval, legal fiction, and necessary legislation, and the private business entity was to acquire the organization of a consortium and development gains by function. The instant business was one of the important business activities at the time of ○ ○ Do’s special business report, which was held on February 2, 2011, to the extent that it would be stated in the major business promotion plan for 2011.

② On January 21, 2011, Defendant 1, as the proposer, submitted the instant project proposal to ○○○ by designating Nonindicted Co. 7, Ltd. as the proposer. On February 17, 2011, Defendant 1 completed the registration of incorporation of Nonindicted Co. 7 with the capital KRW 500,000,000, Defendant 6 as the representative director, and continued to undertake the instant project as the actual operator of Nonindicted Co. 7.

③ After submitting the proposal for the instant project to the ○○○○○○○, Nonindicted Co. 7 held a meeting of the Private Investment Inducement Committee on February 11, 201, held a deliberation of the ○○○ Government Coordination Committee on February 21, 2011, and prepared a public letter on February 28, 2011, to prepare for the efficient implementation of the instant project, such as preparing a preparation for the implementation of the instant project by preparing a plan for supporting the complex complex development (department by department). However, in preparation for the failure of the project, Nonindicted Co. 7 decided to proceed with the instant project in the direction of removing the problems caused by the suspension of the project, etc.

④ ○○○ and Nonindicted Co. 7 entered into an agreement on February 25, 2011. The content stated that Nonindicted Co. 7 established a special purpose company (Main SPC) that directly implements the instant business before December 31, 2011. The agreement states that “○○do provides investment incentives through the designation, etc. of an investment promotion zone if it satisfies the future complex development project requirements.”

(B) The reasons why Defendant 1 received KRW 2 billion from Defendant 5 (Defendant 4)

① Defendant 1 instructed Defendant 2 to color “investors” of the instant business through Defendant 2, and was introduced through Defendant 3 around October 2010.

② Defendant 5 (Defendant 4) first known of the instant project through Defendant 3; Defendant 1, etc. agreed to invest a total of KRW 2 billion in the instant project after hearing the explanation from Defendant 1, etc.; Defendant 1, on November 29, 2010, sent Nonindicted 5’s participation in the project to the ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○.

③ Defendant 5 (Defendant 4): (a) uneasy to give additional money to Defendant 1; and (b) on January 16, 2011, Defendant 1 met Nonindicted 5’s Do governor with Defendant 1, and (c) remitted KRW 1 billion from January 27, 2011 to February 10, 201.

④ At the time when Defendant 5 (Defendant 4: Defendant 4) delivered KRW 1 billion for the first time on December 28, 2010, there was no express mentioning that Defendant 1, etc. have the right to conduct a pilot project or a casino experience center business, and there was no indication to the same effect as the said letter of undertaking. Even if it is based on the recording on January 201, 201, Defendant 1, etc. made a statement to the effect that Defendant 1, etc. enacted ordinances for the business of the casino experience center, etc. or grants money to the Governor. However, it is not found that Defendant 1, etc. made a statement to the effect that Defendant 5, etc. will act as the independent business of Defendant 5 (Defendant 4: Defendant 4) and the relevant public official, such as the Governor, etc., and Defendant 5 (Defendant 4: Defendant 4) will act as intermediary or convenience.

⑤ The reasons why Defendant 5(Defendant 4) paid KRW 2 billion to Defendant 1 are consistently stated that Defendant 1’s business rights was guaranteed to Defendant 5 (Defendant 4) upon obtaining the permission of the instant business. Specifically, Defendant 5 (Defendant 4) stated that Defendant 1’s business status was the investment attraction adviser who received from Defendant 1’s ○○ Do governor, and Defendant 1 paid the money in return for Defendant 1’s business rights by conducting a subjective business as Defendant 1’s share price and Defendant 2). Thus, it is difficult to deem that Defendant 5 (Defendant 4: Defendant 4) had the intent to solicit for mediation for the authorization and permission of the instant business.

6. Defendant 5 (Defendant 4) was unable to accurately know the procedures and details of the instant project, in addition to the main contents to obtain casino business rights in return for the amount of KRW 2 billion paid by himself upon completion of the instant project.

7) Defendant 5 (Defendant 4) received a loan certificate from Defendant 1 on March 30, 201 as a guarantee measure for the amount paid to Defendant 1 on March 30, 201. At this time, Defendant 5 (Defendant 4) was at the time when the business was in progress, and as such, Defendant 5 (Defendant 4: Defendant 5: Defendant 4) was deemed to have had the intention to receive a loan certificate in order to guarantee the loss of investment, and Defendant 5 (Defendant 5: Defendant 4) appears to have thought that the purpose of receiving the loan certificate was to receive the loan certificate was to contribute to the investment of KRW 2 billion at the time of giving money in the court of first instance. Defendant 5 (Defendant 4: Defendant 5) also stated that there was no explicit friencing or agreed on the operation of the Co PC model, and that Core PC was made after this agreement was concluded with ○○○○.

【 Defendant 1 stated to Defendant 5 (Large Market: Defendant 4) that Defendant 1 had no time to undergo environmental impact assessment over a long-term period since it is a business that must immediately commence the said drums and casino experience programs. Defendant 1 stated to the effect that this project is directly involved in the Do’s interest, not pure private business, and thus, that Defendant 5 (Large Market: Defendant 4) told Defendant 5 (Defendant 5: Defendant 5) that “The Do Governor trusts 5 Do governor and talks with the Do Governor on the business plan and authorization, etc.,” and it is difficult to view that Defendant 5 (Large Market: Defendant 4) will arrange the affairs related to the authorization, permission, etc. of Defendant 5 (the 000 Do public official).”

9) In light of the process of the instant project, the details of the investment made by Defendant 5 (Counter-board: Defendant 4) and the record of the recording, and the letter of undertaking, among the statements made by Defendant 5 (Counter-board: Defendant 4) in the investigative agency and the court of the court of the court below, it is reasonable to view that the statements made by Defendant 1 as an intermediary for authorization and permission of the business right are ex post facto leap in line with the elements of mediation and acceptance after the failure of the instant project, and that part of the statements made by Nonindicted 2 in the court of the court of the court below by the witness 2 was known of the fact that the Defendant 5 (Counter-board: Defendant 4) knew of the fact that the Defendant 5 (Counter-board: Defendant 4) was paid the money after the first 1 billion won, and it is difficult to have value as independent evidence.

(C) Sub-decisions

As seen earlier, “mediation” generally means that a certain person and the other party make good offices or convenience, and there is an intention between the two parties to arrange another person’s business. However, in light of the above circumstances, Defendant 1 does not intervene in the intermediary for good offices between Defendant 5 (Defendant 4) and 000. However, it is reasonable to deem that Defendant 1, in the process of carrying out the business as the principal agent of the instant project, was paid money from Defendant 5 (Party 4: Defendant 4) under the name of the investment money of the instant project, and in return, the business right (the business right also means not only Defendant 5 (Party 4: Defendant 4), but also the business right of Defendant 5 (Party 4: Defendant 4) (the business right is also the form of sharing shares with Defendant 1, etc.) such as casino experience center.

(3) Determination as to whether a person's business is another person

(A) Issues

The crime of violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (Aggravated Punishment, etc. of Specific Crimes) is a provision punishing a person who gives or receives money, valuables or other benefits under the pretext of arranging affairs handled by a public official. Since the meaning of "mediation" itself is so arranged that another person's work is well-grounded, the act of mediation must be for another person's work (see, e.g., Supreme Court Decisions 2005Do7050, Apr. 14, 2006; 2010Do2554, Apr. 29, 2010). Whether Defendant 1's work for implementing the business of this case and the casino business of a non-indicted 1 corporation, which Defendant 1 promised to Defendant 5 (Defendant 4) may be deemed a separate work, respectively, and whether Defendant 1 and Defendant 5 (Defendant 4) can be deemed to have established the non-indicted 1 corporation under the business agreement.

(B) Relationship between Defendant 1’s affairs and the business of Nonindicted Company 1’s casino experience center

In full view of the following circumstances, Defendant 1’s business affairs may be deemed to include the business affairs that enable Nonindicted Co. 1 to carry out the casino experience center business.

① The instant project is divided into the entire project and the “Pilot complex project.” The entire project is a business established and implemented by Main SPC. The “Pilot complex project” is an individual project implemented immediately prior to the implementation of the entire project, and the authorization and permission to operate the “Pilot complex project” is in the name of Core PC, namely, the main project executor of the core project. The instant project itself was planned to proceed over a large scale and phase, and may vary depending on the results of the demonstration complex project, the demonstration complex project may be deemed part of the initial part of the entire project.

② Defendant 1’s duties are composed of Main SPC for the success of the entire project, and the early project funds were returned from the date of the occurrence, and Defendant 1’s duties were carried out with intent to be entitled to participate preferentially in the Sub SPC. However, it is reasonable to deem that Defendant 1’s duties, other than the official position, play a role in leading the project as a proposer of the project as a whole.

③ Defendant 1, while practically operating Nonindicted Co. 7, ordered Defendant 2, Defendant 3, etc. to form the office of ○○○○○, and led to attracting investors. Defendant 1 given part of the amount received from Defendant 5 (Defendant 4) to Defendant 2 and Defendant 3 respectively as office operating expenses and transportation expenses. In light of a real estate lease agreement and a purchase receipt for computers, etc., the fact that they used the money in line with this purpose is recognized, and it appears that they engaged in the business for the progress of the instant project.

(C) Whether Defendant 1 and Nonindicted Company 1 work together

① Since there is no special legal limitation on the type of the partner’s investment under the same trade agreement, not only the property rights, such as money, but also the provision of labor. Even if Defendant 5 (Defendant 4): Defendant 5’s statement was based on Defendant 4, Defendant 1 agreed that Defendant 1 shall have a general responsibility for operating the casino business. In addition, Defendant 1 shall have a 49% share of the non-indicted 1 corporation without compensation, but Defendant 1 shall have a bad faith to return all the investment money received from Defendant 5 (Defendant 4: Defendant 1: Defendant 4) within six months without any condition (Article 11 of the Declaration), and thereafter, if Defendant 1 was to take advantage of the profit by running the casino experience business, etc., it shall be allocated profits according to the share of ownership (it shall not be deemed that there was no voting right even if the shares held by Defendant 1 are available). Accordingly, Defendant 1 and Defendant 5 (Defendant 4: Defendant 4) shall be acknowledged as having reached an agreement on the burden of profits and losses.

② Defendant 1 received 49% of the shares of Nonindicted Co. 1 established by Defendant 5 (Defendant 4: Defendant 1) in return for the operation of Nonindicted Co. 1 corporation between 2-3 and Defendant 1’s success, and Defendant 1 stated that Defendant 1 attempted to divide this share into “public-private partnership.” Defendant 1 had an intention to use and dispose of the shares of Nonindicted Co. 1 corporation in a voluntary manner according to his economic interest.

③ In light of the fact that Defendant 1 established Nonindicted Co. 7, the PM company of the instant business, and listed Defendant 6 as the representative director on the name of the instant company, carried out the business in substance, held 49% of the shares of Nonindicted Co. 1 in the name of the borrower, and promised to take overall control of the business for a certain period, etc., Defendant 1 alone cannot be readily concluded that the said business contract was merely in the form or appearance to facilitate Defendant 1’s good offices solely on the ground that he was in the position of the investment attraction adviser or the business coordination officer, or that he refused to take measures to operate the business with respect to Core PC.

(4) Determination as to Defendant 1

According to the above, the charge of violation of the Act on the Aggravated Punishment, etc. of Specific Crimes against Defendant 1 constitutes a case where there is no proof of a crime regarding the fact that Defendant received money under the pretext of mediation of another person's business.

(5) Determination as to Defendant 2 and Defendant 3

Defendant 2 played the role of introducing Defendant 5 (Defendant 4) to Defendant 1 through Defendant 3, and Defendant 5 (Defendant 4: Defendant 5: Defendant 4) made it possible for Defendant 1 to deliver KRW 2 billion to Defendant 1 by excessively explaining the prospects of the instant project.

However, Defendant 2 and Defendant 3 did not directly receive KRW 2 billion; Defendant 2 and Defendant 3 received KRW 60 million from Defendant 1 among these money; however, this money was fully used as actual expenses for the progress of the instant project; there was no other benefit for Defendant 2 and Defendant 3; Defendant 2 and Defendant 3 did not waive their occupation and work; Defendant 2 and Defendant 3 did not establish an office for the implementation of the instant project at ○○○○○○○ under the direction of Defendant 1; in light of their work, they appeared to have been aware that the instant project was jointly supervised by Defendant 1 with ○○○○○○○○○; Defendant 3 did not appear to have introduced Defendant 1 with his intention to arrange, but it was difficult to recognize that Defendant 2 and Defendant 3 did not have any objective explanation of Defendant 4: Defendant 2 and Defendant 4, who did not appear to have provided an independent explanation to Defendant 1.

However, as seen earlier, there is no proof of criminal facts against Defendant 1 in violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (Aggravated Punishment, etc. of Specific Crimes). Thus, there is no proof of criminal facts against Defendant 1 and Defendant 2 and Defendant 3 who were prosecuted for committing the crime.

(6) Sub-committee

Ultimately, Defendant 1, Defendant 2, and Defendant 3 cannot be deemed to have received money from Defendant 5 (Defendant 4) under the pretext of arranging the public official with respect to another person’s business, and there is no other evidence to acknowledge this part of the facts charged. Thus, this part of the Defendants’ assertion is with merit.

B) Violation of the Attorney-at-Law Act and attempted fraud by Defendant 3

원심 및 당심이 적법하게 채택·조사한 증거들을 종합하여 인정되는 다음과 같은 사정 즉, 공소외 2는 이 부분 공소사실에 대하여 구체적이고, 일관되게 진술하고 있는데 반하여, 피고인 3의 진술은 일관성이 없고, 진술 자체의 설득력도 떨어지는 점, 공소외 2가 다른 변호사를 통하여 안양지청장 출신 변호사가 ■■지검 차장검사를 만나고 간 사실이 있는지 확인해 보기도 한 사실이 인정되는 점 등을 종합하면, 피고인이 공소외 2로부터 공무원이 취급하는 사건에 관하여 알선 한다는 명목으로 1억 원을 받기로 약속하였다고 본 원심의 판단은 정당하므로, 피고인 3의 이 부분 주장은 이유 없다.

C) The part concerning the offering of bribe by Defendant 4 in violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (Bribery) and Defendant 5 (Counterparty 4)

(1) The judgment of the court below

In full view of the evidence duly admitted and examined, Defendant 5 (Defendant 4) can be recognized as having committed a crime of giving property in breach of trust because Defendant 4 was in the position of the private capital inducement member at the time when he provided the apartment building in this case to Defendant 4 without compensation. However, the lower court determined that Defendant 4 can be recognized as having committed a crime of giving property in breach of trust since the act of preparing a formal lease contract on the apartment in this case, after being designated as the president of Nonindicted 4 Corporation around July 201, 201, was performed by Defendant 4, who was aware that Defendant 4 would provide the apartment in this case without compensation after acquiring the public official qualification, and thus, the criminal intent of giving property in breach of trust can be recognized as having been renewed as a crime of bribery and offering, and since it can be recognized as having been paid for the provision of the apartment without compensation and business relationship in light of Nonindicted 4’s business affairs.

(2) Judgment of the court below

(A) Whether to renew the criminal intent

Defendant 4 started to use the apartment of this case provided without compensation from Defendant 5 (Defendant 4) when he is a private capital inducement committee member, thereby committing a crime of giving property in breach of trust. We examine whether the crime of bribery and giving property is established by changing Defendant 4’s status to Nonindicted 4’s president, a quasi-public official, although there was no change in the above use status.

In a case where the unity and continuity of a criminal intent are not recognized in a continuous crime with no change in the elements of a crime, or where the method of committing a crime is not the same, the renewal of a criminal intent is recognized and the crime before and after the crime is established separately (see Supreme Court Decision 2007Do8645, Nov. 11, 2010; 2007Do8645, Nov. 11, 2010). Such renewal of a criminal intent can be recognized among crimes with different elements of a crime. Thus, if the status of a criminal in breach of trust is changed to a public official while the benefit is continuously enjoyed and provided due to a crime in breach of trust, even if there is no change in the status of enjoying and providing benefit, if both parties are aware of such change in status and expressed their intent to continue such situation, the crime in breach of trust is cut off by itself, and a new crime of acceptance of bribe and offering of bribe is established through the renewal of the criminal intent.

According to the evidence duly adopted and examined by the lower court, Defendant 4 was determined as the president of Nonindicted 4 Corporation on July 201, and prepared a formal lease contract to register his property with Defendant 5 (Defendant 4) as property at the time of registration of public official’s property, and Defendant 5 (Defendant 4: Defendant 4) continued to provide an apartment without compensation without demanding Defendant 4 to prepare a lease contract and pay the lease deposit accordingly. Furthermore, according to the evidence duly adopted and examined by the lower court, Nonindicted 4 corporation is a local public enterprise established to carry out business such as information and marketing on tourism, tourism products, and development of tourist resources, and thus, it can be recognized that it can carry out business activities such as tourism promotion and marketing in relation to the instant business, and thus, its relevance to business relations can be recognized).

Ultimately, the act of preparing the above lease contract has reached the renewal of the criminal intent by expressing and expressing the criminal intent to continue the free use and provision of apartment in connection with his duties while recognizing the changes in the status of Defendant 4, and the judgment of the court below is justified.

(c) Calculation of any property interest received;

The crime of violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (Bribery) is one of the constituent elements of the crime, and accordingly, the amount of the bribery in the crime of bribery is subject to strict proof (see Supreme Court Decision 2009Do4391, Aug. 20, 2009).

The lower court calculated the profits equivalent to the rent in relation to the apartment of this case by adding the minimum monthly tax amount during the period from July 18, 2011 to April 30, 2014, among the “the calculation details of the amount of monthly rent converted into the monthly rent applicable to the average monthly rent rate” attached to the inquiry inquiry reply.

However, the above calculation is the amount calculated by applying the average monthly rent rate (0.81~0.93% according to the time) to the minimum amount and maximum amount of the rent deposit with respect to apartments under the same conditions as the instant apartment that the Korea Appraisal Board conducted a monthly rent price survey pursuant to Article 86 of the Housing Act and Article 118 of the Enforcement Decree of the same Act. In the case of the monthly rent converted from the minimum amount of the rent deposit to the maximum amount of KRW 2,050 per month, it is difficult to determine the difference as the basis for the calculation of the rent amount, and it is difficult to determine the rent amount as the monthly rent amount equivalent to the monthly rent amount that changes every month according to the rent deposit collected by statistics with respect to the same apartment, and it is not consistent with the reality of paying the fixed monthly rent amount, and it is difficult to readily conclude that the method of calculating the rent amount accurately reflecting the monthly rent amount from the rent deposit to the average amount of the monthly rent amount.

On the other hand, Defendant 4 and Defendant 5 (Defendant 4) prepared a pre-sale contract of KRW 200 million for the pre-sale deposit, and judged this as an index for the renewal of the criminal intent of acceptance of bribe and grant of bribe as seen earlier. In light of the “the calculation of the monthly rent conversion amount applicable to the average monthly rent rate of Gyeonggi-do”, the above KRW 200 million is close to the average amount of the pre-sale deposit for the apartment of this case. While the Defendants continued to use and provide apartment houses without actually receiving the pre-sale deposit of KRW 200 million, they can be deemed that there was a will to enjoy and provide at least 200 million for the benefit of financial profit.

Furthermore, when calculating financial gains that the defendant gains by borrowing money with interest without interest or without being obliged to pay the deposit money, the legal interest rate stipulated in the Civil Act or the Commercial Act shall be based on the loan interest rate to be borne when the defendant borrowed money from a financial institution or if the loan interest rate cannot be ascertained (see Supreme Court Decision 2008Do2590, Sept. 25, 2008). Considering the status of the defendant 4, etc., it is reasonable to deem that the above 200 million won is an amount calculated at the rate of 5% per annum 5% per annum as stipulated in the Civil Act from July 18, 2011 to April 30, 2014 (see Supreme Court Decision 27,883,561 won (=200,000 + 200,000 + 9/12 + 14/135/56) x 65% of the loan interest of this case).

(3) Sub-decisions

Ultimately, Defendant 4 and Defendant 5 (Counter-board: Defendant 4) did not constitute the crime of bribery and the crime of offering money. However, Defendant 4’s assertion regarding the method of calculating the amount of bribery is with merit. As such, Defendant 4’s violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (Bribery) among the facts charged against Defendant 4 constitutes a case where there is no proof of a crime regarding the fact that the amount of bribery is more than KRW 30 million, which is the constituent element of the crime, and only the fact of bribery following the offering of pecuniary benefits equivalent to KRW 27,88

On the other hand, as long as only part of the amount accepted by Defendant 4 is recognized, there is an error of misconception of facts in the part concerning the offering of bribe by Defendant 5 (Defendant 4) who is the principal offender in the judgment of the court below, and there is a ground for ex officio reversal in this part 5).

D) Defendant 6

(1) The judgment of the court below

The court below found the defendant guilty of each fraud against the victims on the following grounds: (a) the circumstances duly admitted and investigated evidence, namely, that the defendant had no ability to establish Main SPC before December 31, 201 at the time when he received the money from the victims; (b) the defendant appears to have no intent or ability to guarantee the business rights or the right to sell commercial buildings promised even if he received the money from the victims; and (c) the defendant was not capable of paying a large amount of debt without any specific property at the time; and (d) the defendant was not able to pay it individually.

(2) Judgment of the court below

In full view of the following objective circumstances, which are recognized by the evidence duly adopted and investigated by the court below, the court below's decision is justified.

① Even based on the Defendant’s statement, the Defendant tried to form Main SPC without his own investment money, and had not secured the necessary capital through an investment by a third party, and even based on the agreement between the Gyeongnam-gu and the construction company and the investor, the Defendant was unable to raise funds for the implementation of the project prior to the conclusion of the construction contract. Ultimately, the Defendant appears to have had the intent to run the project, but it appears that there was no capacity to perform the project, and the Defendant agreed to return the principal to Nonindicted 44 and received KRW 100 million, regardless of the failure of the project, and at the time, said Nonindicted 4 was aware that he would immediately participate in the project.

② The victim Non-Indicted 20 stated that the store occupant was able to do so by the end of June, and that the business is carried out by dividing it into one, two, and three sections. The business is carried out by stages. The contents of the statement, such as making a statement, are specific and persuasive. Unlike the Defendant’s horses, if the victims were to know that the long-term demand for the progress of the business in this case was made, it cannot be said that they believe that the possibility of completion of the business is possible, and that the act of deceiving the shop occupant could also be recognized as a deceptive act.

E) Defendant 7

(1) The judgment of the court below

The lower court determined that Defendant 7 could be recognized by the Defendant 7 in collusion with the Defendant 6, in light of the following: (a) the circumstance duly admitted and investigated evidence, namely, the Defendant explained the victim Nonindicted 20 and Nonindicted 27 about the guarantee of shop occupants’ right to shop occupants; (b) the additional investment was urged; and (c) the Defendant partially distributed the amount received from the victims; and (d) the Defendant received part of the amount that Defendant 6 received from the victims.

(2) Judgment of the court below

In light of the following circumstances, the lower court’s determination that Defendant 7 conspiredd with Defendant 6 is justifiable.

① Nonindicted 20 and Nonindicted 27 stated that Nonindicted 28 mainly referred to Defendant 7 at the time when they talk about the instant business, and that Nonindicted 28 took part in a talk about money or a talk about business through Defendant 7.

② Although Nonindicted 28 made a statement that is contrary to the statements made by Nonindicted 20 and Nonindicted 27 on the part of Defendant 7’s performance of the above role, it may be deemed that it made such statement due to the pro rata relationship with Defendant 7. Even according to Nonindicted 28’s statement, Nonindicted 28 came to know about the instant project through Defendant 7, ② Nonindicted 20 received a prior business plan from Defendant 7 when talking about the instant project to Nonindicted 20; ② Nonindicted 20 and Nonindicted 27 were accompanied by Defendant 6 on March 18, 201 and around March 21, 201; ② Nonindicted 20 and Nonindicted 27 were accompanied by Defendant 6 on March 18, 2011; ② Nonindicted 7 did not make any investment after remitting KRW 50 million from Nonindicted 20,500,000 from Defendant 7 to Defendant 28, who attempted to pay the additional money to Nonindicted 28 without permission.

B. Determination on the assertion of unfair sentencing

1) Defendant 1 (the offering of a bribe and the part No. 5-b. of the decision of the court below)

The fact that the defendant did not pay the liquidation amount proportional to the shares offered to the defendant 4 after the liquidation of the non-indicted corporation 14 and there is no profit gained by the defendant 4 is a favorable circumstance.

그러나, 피고인은 ▤▤을 원료로 한 화장품 사업을 시도하면서 ○○공항 내국인 면세점에 입점하기 위하여 피고인 4에게 적극적으로 뇌물을 공여한 점 등은 피고인에게 불리한 정황이다.

In addition, considering the Defendant’s age, character and conduct, environment, motive and circumstance of the crime, means and consequence of the crime, and all of the sentencing conditions indicated in the records, such as the circumstances after the crime, it is difficult to view that the court below’s sentencing of the Defendant is too unreasonable.

Therefore, this part of the defendant's argument is without merit.

2) Defendant 6

The Defendant established Nonindicted Co. 7 in a manner that makes it difficult to carry out the instant project, thereby impairing the capital balance of the stock company and the trust of the parties to the transaction, and, in the process of making the project in an unreasonable manner without the ability to carry out the instant project, the crime is bad, the damage is not completely recovered, and there is a fact that the Defendant was punished by a fine for the same criminal offense.

However, the defendant agreed with the victims by returning part of the investment funds to the victims and providing them with a future repayment plan, and it is advantageous that the defendant additionally repaid 5.8 million won to the victims non-indicted 44 in the first instance.

In addition, considering the Defendant’s age, character and conduct, environment, motive and background of the instant crime, means and consequence of the instant crime, etc., it is difficult to deem that this part of the lower court’s punishment is too heavy or unreasonable.

Therefore, this part of the defendant and prosecutor's argument is without merit.

4) Defendant 7

In collusion with Defendant 6, the Defendant: (a) deceivings the victim as if he would secure the right to sell commercial buildings in an uncertain state where the continuous implementation of the business is uncertain; (b) denies the crime in a consistent vindication that is difficult to obtain even if he did not receive the money, and (c) denies the crime; and (d) has been punished by a fine for the same kind of criminal offense, which is unfavorable to the Defendant.

However, the fact that the Defendant was a person unrelated to the instant business and appears to have committed the instant crime in the process of gathering investment funds upon Defendant 6’s request, the fact that the amount distributed by the Defendant is not large, and that Defendant 6, an accomplice, agreed with the victim is favorable.

In addition, considering the Defendant’s age, character and conduct, environment, motive and background of the instant crime, means and consequence of the instant crime, etc., it is difficult to deem that this part of the lower court’s punishment is too heavy or unreasonable.

Therefore, this part of the defendant and prosecutor's argument is without merit.

3. Conclusion

Defendant 1’s appeal as to the crime of offering of bribe (the crime of offering of bribe) in Article 5-B of the judgment of the court below and appeal as to Defendant 6, Defendant 7’s appeal and prosecutor’s appeal as to Defendant 6 and Defendant 7 is without merit, and all of them are dismissed in accordance with Article 364(

Defendant 1, Defendant 2, and Defendant 3 of the Act on the Aggravated Punishment, etc. of Specific Crimes on the ground of mistake of facts and misapprehension of legal principles as to the violation of the Act on the Aggravated Punishment, etc. of Specific Crimes, and the appeal filed on the ground of mistake of facts and misapprehension of legal principles as to the calculation of the amount of the accepted bribery by Defendant 4 are with merit. Of the judgment of the court below, the part which sentenced Defendant 1 to one punishment by treating Defendant 1 as concurrent crimes under the former part of Article 37 of the Criminal Act on the crime of violation of the Act on the Aggravated Punishment, etc. of Specific Crimes, which is found not guilty at the time of original adjudication, and the second and fifth crimes of violation of the Act on the Aggravated Punishment, etc. of Specific Crimes, which are found not guilty as above, and the part which sentenced one punishment by treating Defendant 3 as concurrent crimes under the former part of Article 37 of the Criminal Act on the Aggravated Punishment, etc. of Specific Crimes shall be reversed. Meanwhile, there is no ground for ex

Therefore, without further proceeding to decide on the allegation of unfair sentencing on the part of the crimes of Articles 1, 2, and 5-A of the judgment of the court below, and on the assertion of unfair sentencing by Defendants 2, 3, 4, and 5 of the judgment of the court below, the part on the crimes of Articles 1, 2, and 5-A of the judgment of the court below as to Defendant 1, and the part on the crimes of Defendants 2, 3, 4, and 5 of the judgment of the court below as to Defendant 1 of the judgment of the court below, are reversed pursuant to Article 364-2 and 6 of the Criminal Procedure Act, and the part on Defendant 4 of the judgment

【Criminal Power】

【Criminal Facts】

1. Defendant 1

2. Defendant 3

The criminal records and criminal facts recognized by this court against the above defendants are the same as the corresponding column of the judgment below, except for the deletion of the part concerning the violation of the Act on the Aggravated Punishment, etc. of Specific Crimes. Therefore, they are cited in accordance with Article 369 of the Criminal Procedure Act.

3. Defendant 4

(a) Property in breach of trust;

Since the facts constituting the crime in this part recognized by this court against the above defendant are the same as the corresponding column of the judgment of the court below, they are quoted in accordance with Article 369 of the Criminal Procedure Act.

B. The acceptance of bribe from Defendant 5 (Counter-board: Defendant 4)

From July 18, 2011 to May 22, 2014, Defendant 4, as the president of Nonindicted Corporation 4, comprehensively supervised the overall duties of Nonindicted Corporation 4, including domestic and foreign tourist attraction and marketing projects, and the establishment and operation of duty-free shops at home and abroad.

피고인 4는 2011. 1.경 위 가.항 기재와 같이 피고인 1이 추진하고 있는 ○○ 판타스틱 아트시티 사업을 도와주는 과정에서 위 사업 중 제1지구 시범단지 내 ‘드라마세트장 및 카지노체험관’ 사업 부문의 인수를 추진하고 있는 건설업자 피고인 5(대판 :피고인 4)를 알게 됨을 기화로, 2011. 3.경 피고인 5(대판 :피고인 4)로부터 위 사업이 성공할 수 있게 계속 도와달라는 취지로 피고인 5(대판 :피고인 4)가 운영하는 밴티지건설이 시행하여 건축한 김포 (주소 1 생략) 소재 ◈◈◈◈◈◈아파트 1채를 피고인 4의 아들 공소외 13이 거주할 수 있도록 무상임차 형식으로 제공받기로 약속하였다.

이에 따라 피고인 4는 2011. 5.경 피고인 4의 아들 공소외 13을 위 ◈◈◈◈◈◈아파트 (동 호수 생략)(42평형)에 입주시켜 거주하게 한 후, 2011. 7. 18. 공소외 4 공사 사장에 취임하게 되자 2011. 7.경 피고인 5(대판 :피고인 4)에게 마치 위 아파트를 임대차보증금 2억 원에 전세로 임차한 것처럼 허위 전세계약서를 요구하여 교부받고, 피고인 5(대판 :피고인 4)로부터 관광객 유치 등을 통해 위 사업이 성공할 수 있도록 공소외 4 공사 사장으로서 계속 도와달라는 취지의 청탁과 함께 위 아파트를 계속 제공받기로 한 다음 2014. 4. 30.경까지 공소외 13을 위 아파트에 무상으로 거주하게 하였다.

Accordingly, from July 18, 2011 to April 30, 2014, Defendant 4 received benefits equivalent to KRW 27,883,561 in total in relation to the duties of the president of Nonindicted 4 Corporation from Defendant 5 (Defendant 4).

C. Acceptance of bribe from Defendant 1

On June 2012, Defendant 4 promised to receive 20% of the shares of the above company in return for the request to the effect that Defendant 1, who was in a situation where ○○○○○ City ( Address 4 omitted), 621 officetel 621, and Defendant 1, who was under the direct management of Nonindicted Corporation 4, sold cosmetics in the name of Nonindicted Corporation 14 and operated directly by Nonindicted Corporation 4 at the ○○ Heavy Complex, operated by Nonindicted Corporation 4.

Accordingly, around June 21, 2012, Defendant 1 changed the trade name of Nonindicted Co. 15, a ○○○○ SPC in the name of Nonindicted Co. 7, which owned 100% of the shares, to Nonindicted Co. 14, and increased the capital from KRW 50 million to KRW 300 million, Defendant 1 paid the total amount of the capital increase of KRW 250 million, including the capital increase of KRW 60 million in the amount of KRW 20 million in the shares to be provided to Defendant 4. In that process, Defendant 4 acquired 20% of the shares of the said company from Defendant 1 in the name of Nonindicted Co. 16, a party who is the seat of Defendant 4.

Accordingly, Defendant 4 received 20% of the shares of Nonindicted Company 14 in relation to the duties of the president of Nonindicted Corporation 4 from Defendant 1.

4. Defendant 5 (Defendant 4)

피고인 5(대판 :피고인 4)는 위 3.의 나.항 기재와 같이 공소외 4 공사 사장인 피고인 4에게 그 직무에 관하여 위 ◈◈◈◈◈◈아파트 (동 호수 생략)의 차임 합계 27,883,561원 상당의 이익을 공여하였다.

The gist of the evidence recognized by this court is as stated in the corresponding column of the judgment below except for deletion of evidence concerning the violation of the Act on the Aggravated Punishment, etc. of Specific Crimes, etc., so it is quoted in accordance with Article 369 of the Criminal Procedure Act.

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

Defendant 1: Articles 628(1), 622(1) and 622(1) of the Commercial Act, Article 30 of the Criminal Act (the point of provisional payment), Articles 228(1), 30 of the Criminal Act (the point of entry into false electronic records, etc.), Articles 229, 228(1), and 30 of the Criminal Act (the point of exercise of false entry into public electronic records, etc.), Article 357(2) and (1) of the Criminal Act (the point of giving rise to breach of trust)

Defendant 3: Article 111(1) of the Attorney-at-Law Act (the point of promise to receive money under the pretext of solicitation), Articles 352 and 347(1) of the Criminal Act (the point of attempted fraud)

Defendant 4: Article 357(1) of the Criminal Act (the point of acceptance of bribe in breach of trust), Article 129(1) of the Criminal Act, Article 83 of the Local Public Enterprises Act (the point of acceptance of bribe in each case)

Defendant 5 (Counter-board: Defendant 4): Articles 133(1) and 129(1) of the Criminal Act

1. Commercial competition;

Defendant 3: Articles 40 and 50 of the Criminal Act (Punishments on Crimes of Violation of the Attorney-at-Law Act, Attempted Fraud, and Punishment on Crimes of Attempted Fraud)

1. Selection of punishment;

Defendant 1, Defendant 3, and Defendant 4: The choice of imprisonment

Defendant 5 (Counter-board: Defendant 4): Selection of a fine

1. Handling concurrent crimes;

Defendant 1: The latter part of Article 37 and the main sentence of Article 39(1) of the Criminal Act [the crime of false entry in public electronic records, etc., the crime of false entry in public electronic records, etc., the crime of uttering of false entry, public electronic records, etc., the crime of giving rise to

Defendant 3: The latter part of Articles 37 and 39(1) of the Criminal Act (the former part of Article 39(1) of the Act on the Aggravated Punishment, etc. of Specific Crimes and the former part

1. Aggravation for concurrent crimes;

Defendant 1: The former part of Article 37, Article 38 (1) 2, and Article 50 of the Criminal Act [the violation of the Commercial Act, the crime of false entry into public electronic records, etc., the crime of uttering of false entry into public electronic records, etc., the crime of giving rise to breach of trust, and the crime of violation of the Commercial Act, which is most severe in quality

Defendant 4: The first sentence of Article 37, Articles 38(1)2, and 50 of the Criminal Act (within the scope of the sum of the punishment and the maximum punishment for the crime of acceptance of bribe from Defendant 5 (large: Defendant 4) to the extent of the sum of the long-term punishment for the crime of acceptance of bribe as provided for in the crime of acceptance of bribe)

1. Invitation of a workhouse;

Defendant 5 (Counter-board: Defendant 4): Article 70(1) of the Criminal Act and Article 69(2) of the Criminal Act

1. Suspension of execution;

Defendant 3: Article 62(1) of the Criminal Act (The following extenuating circumstances among the reasons for sentencing)

1. Additional collection:

Defendant 4: The latter part of Article 357(3) and (1) of the Criminal Act, the latter part of Article 134 of the Criminal Act

1. Defendant 1

The defendant established a company in a manner of best payment, thereby undermining the capital balance of the company and the trust of the transaction partner, and the defendant committed various illegal acts without focusing only on the success of the business in the course of promoting the business in this case, but as such, the defendant's efforts to attract tourists with the failure of the business in this case and the progress of the business in this case led to vain. It is disadvantageous to the defendant.

However, there is a confession and reflect on the criminal facts in the judgment that the defendant is guilty in the trial, and the criminal facts in the judgment should consider equity with the case of the judgment at the same time in relation to the concurrent crimes under the latter part of Article 37 of the Criminal Act with the crime of violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Embezzlement) for which the judgment has become final, and the fact that the defendant has no record of punishment for the same kind of crime, etc. shall be considered as favorable circumstances, and the punishment shall be determined as ordered by considering other favorable circumstances, including

2. Defendant 3

이 사건 범행은 피고인이 공소외 2의 남편인 피고인 5(대판 :피고인 4)가 체포된 것을 기화로 공소외 2에게 자신이 아는 변호사를 통하여 ■■지검 차장검사에게 청탁하여 피고인 5(대판 :피고인 4)를 불구속처리하게 해준다고 속여 그와 같은 명목으로 1억 원을 받으려고 한 것으로, 그 죄질이 나쁜 점, 피고인에게는 동종의 범행으로 집행유예의 판결을 받은 전과도 있는 점 등은 피고인에게 불리한 정상이다.

However, the facts that the defendant did not achieve his purpose and attempted crimes are committed, and the facts that should be considered at the same time in relation to concurrent crimes under the latter part of Article 37 of the Criminal Act with the crime of violating the Act on the Aggravated Punishment, etc. of Specific Crimes, for which the judgment has become final and conclusive, should be considered as favorable circumstances. In addition, the defendant's age, character and behavior, environment, circumstances before and after the crime, etc. shall be considered, and the punishment shall be determined as ordered by taking

3. Defendant 4

The Defendant, who was appointed as the president of Nonindicted 4 Corporation from the date of the private capital inducement committee to the time he acquired the status deemed as a public official, received money from Defendant 1, Nonindicted Co. 14’s shares, and Defendant 5’s property benefits, such as free use of apartment houses, and received property benefits, such as taking property benefits through taking property in breach of trust and taking property as a result of bribery, and Defendant 5(SU: Defendant 4) is disadvantageous to the Defendant for a long period of three years, even when he was provided with apartment houses from Defendant 5(SU: Defendant

However, it is advantageous to the fact that the trial of the political party judged otherwise from Defendant 5 (Defendant 4) about the amount of the accepted bribery, that the defendant did not have the same criminal record, that the defendant was not determined as the president of the non-indicted 4 at the time when he started to use the apartment without compensation, and that the defendant is merely a status deemed as a public official.

In addition, the sentencing guidelines are not applied after being prosecuted on July 1, 2014, including the age, character and conduct, environment, motive and background of the crime, means and consequence of the crime, all of the sentencing conditions shown in the records, such as the circumstances after the crime, and the scope of recommendations according to the sentencing guidelines of the Supreme Court on the crime of acceptance of bribe (one year to three years), etc.

2) The crime of acceptance of bribe

[Scope of Recommendation] Type 2 (not less than KRW 10 million but less than KRW 30 million) basic area (one year or three years) of acceptance of bribe

【Special Convicted Person】

3) Application of standards for handling multiple crimes

In case of concurrent crimes under the former part of Article 37 of the Criminal Act among crimes for which the sentencing criteria are set and crimes for which no sentencing guidelines are set, many standards for handling multiple crimes shall not be applied directly, but the minimum of the punishment shall be set at the lower limit of the sentencing range under the sentencing criteria for the crime of acceptance of bribe.

(1) The sentence shall be determined as ordered in full.

4. Defendant 5 (Defendant 4)

The crime of this case is committed against the defendant 4, who is deemed as a public official in order to smoothly conduct his own business, by providing an apartment building owned by the defendant to the defendant 4, who is deemed as a public official, with a benefit of approximately KRW 27.88,00,00. The period during which the apartment was provided free of charge is long time, and the defendant has criminal records of suspended execution due to the same crime

However, it is advantageous to the fact that the defendant, upon the request of the defendant 4, allowed the free use of the apartment that had been in public room and the circumstances should be taken into account, and that the court decides the property benefits granted in the trial differently from the court below, and that the facts charged itself recognized the crime from the beginning of the investigation.

In addition, the sentencing conditions, such as the age, character and conduct, the environment, the motive and background of the instant crime, the means and consequence of the instant crime, etc., shall be determined as ordered in full view of all the circumstances that are conditions for the sentencing.

1. Violation of the Act on the Aggravated Punishment, etc. of Specific Crimes by Defendants 1, 2, and 3

A. Summary of the facts charged

Defendant 1, around November 2010, at the Seocho-gu Seoul Metropolitan City Seocho-gu Office of the President of the Gimdong-gu, Kim Young-gu Office of 148, Defendant 2 and Defendant 3, along with Defendant 3, could exercise influence on the investment attraction business of 00Do as “investment attraction adviser,” and Defendant 1, as “the investment inducement adviser,” had guaranteed the business rights of “the business rights of dlama set, game experience center, soil products sales store, restaurant, etc.” within the model complex of the first district among the entire projects, and decided to “to take the reserved land from 00Do and resolve all kinds of authorization and permission issues, such as building permission.” After having Defendant 5 (U.S. 4): Defendant 5 (U.S.) participate in the model complex project; Defendant 4 (U.S.) participate in the project; Defendant 5 (U.S. 200 million won).

이에 따라 피고인 1은 피고인 5(대판 :피고인 4)로부터 2010. 12. 28. 피고인 1이 운영하는 공소외 8 주식회사 명의의 ☆☆은행 계좌로 10억 원을 송금받고, 2011. 1. 27. 피고인 1의 후배 공소외 9 명의의 ▽▽은행 계좌로 1억 원, 피고인 1의 비서 공소외 10, 공소외 11 명의의 ▼▼은행, ☆☆은행 계좌로 각 1억 5,000만 원, 2011. 2. 10. 위 공소외 9, 공소외 10, 공소외 11 명의의 계좌로 각 2억 원을 각 송금받았다.

As a result, Defendant 1, Defendant 2, and Defendant 3 conspiredd to give and receive a total of KRW 2 billion on three occasions about the good offices and solicitation of matters belonging to public officials' duties.

B. Determination

As seen earlier, as to the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (reconciliation) by Defendants 1, 2, and 3, there is no proof of a crime, the judgment of innocence is rendered in accordance with the latter part of Article 325

2. The point of violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (Bribery) by Defendant 4 and the point of offering of bribe by Defendant 5 (Defendant 4);

A. Summary of the facts charged

1) Defendant 4

From July 18, 2011 to May 22, 2014, Defendant 4, as the president of Nonindicted Corporation 4, comprehensively supervised the overall duties of Nonindicted Corporation 4, including domestic and foreign tourist attraction and marketing projects, and the establishment and operation of duty-free shops at home and abroad.

피고인 4는 2011. 1.경 위 가.항 기재와 같이 피고인 1이 추진하고 있는 ○○ 판타스틱 아트시티 사업을 도와주는 과정에서 위 사업 중 제1지구 시범단지 내 ‘드라마세트장 및 카지노체험관’ 사업 부문의 인수를 추진하고 있는 건설업자 피고인 5(대판 :피고인 4)를 알게 됨을 기화로, 2011. 3.경 피고인 5(대판 :피고인 4)로부터 위 사업이 성공할 수 있게 계속 도와달라는 취지로 피고인 5(대판 :피고인 4)가 운영하는 밴티지건설이 시행하여 건축한 김포 (주소 1 생략) 소재 ◈◈◈◈◈◈아파트 1채를 피고인의 아들 공소외 13이 거주할 수 있도록 무상임차 형식으로 제공받기로 약속하였다.

이에 따라 피고인 4는 2011. 5.경 피고인 4의 아들 공소외 13을 위 ◈◈◈◈◈◈아파트 (동 호수 생략)(42평형)에 입주시켜 거주하게 한 후, 2011. 7. 18. 공소외 4 공사 사장에 취임하자 2011. 7.경 피고인 5(대판 :피고인 4)에게 마치 위 아파트를 임대차보증금 2억 원에 전세로 임차한 것처럼 허위 전세계약서를 요구하여 교부받고, 피고인 5(대판 :피고인 4)로부터 관광객 유치 등을 통해 위 사업이 성공할 수 있도록 공소외 4 공사 사장으로서 계속 도와달라는 취지의 청탁과 함께 위 아파트를 계속 제공받기로 한 다음 2014. 4. 30.경까지 공소외 13을 위 아파트에 무상으로 거주하게 하였다.

Accordingly, from July 18, 201 to April 30, 2014, Defendant 4 received benefits equivalent to KRW 54,798,800 in total in relation to the duties of the president of Nonindicted 4 Corporation from Defendant 5 (Defendant 4).

2) Defendant 5 (Defendant 4)

피고인 5(대판 :피고인 4)는 위 1)항 기재와 같이 공소외 4 공사 사장인 피고인 4에게 그 직무에 관하여 위 ◈◈◈◈◈◈아파트 (동 호수 생략)의 차임 합계 54,798,800원 상당의 이익을 공여하였다.

B. Determination

1) Scope of a party member’s trial (Defendant 4)

From July 18, 2011 to April 30, 2014, the prosecutor charged Defendant 4 with the receipt of benefits equivalent to KRW 54,798,800, calculated based on the average of the rent of the apartment of this case as indicated in the “the calculation of the amount converted into the original monthly rent applicable to the Gyeonggi-do average monthly rent rate” attached to the prosecutor’s inquiry reply to the Korea Appraisal Board.

The court below found Defendant 4 guilty only of violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (Bribery) due to the receipt of profits equivalent to KRW 49,800,600 from the Korea Appraisal Board on the ground that it is reasonable to base the minimum amount of the above calculation in recognizing the profits equivalent to the rent as a bribe in relation to the above charged facts, and found Defendant 4 guilty and acquitted Defendant 9 of the

Since only Defendant 4 filed an appeal on the conviction on the grounds of mistake of facts, misunderstanding of legal principles, and unreasonable sentencing, the part which the lower court rendered a not-guilty verdict on the grounds of the reasoning is judged to have been exempted from the object of attack and defense between the parties, and therefore the conclusion of the lower court is consistent with this part.

2) Determination of the immediate deliberation

As examined earlier, since this part of the facts charged constitutes a case where there is no proof of facts constituting the crime, it should be pronounced not guilty pursuant to the latter part of Article 325 of the Criminal Procedure Act. However, inasmuch as Defendant 4’s judgment on the acceptance of bribe and Defendant 5’s judgment on the offer of bribe (In the case of Defendant 4, Defendant 4), as long as

Judges Lee Jin-soo (Presiding Judge)

Note 1) In order to meet the minimum capital requirement, a new company of KRW 500 million was established, and its name was changed to “Nonindicted 7 Stock Company” and the name of the previous company was changed to “Nonindicted 7 Stock Company Global.”

Note 2) The purport of testimony at the court of the original instance rendered by Defendant 5 (Defendant 4) under title 2, title 926-927, Defendant 2, the trial record, appears to the purport that “Defendant 1 shall promote the project under the lead of Defendant 1,” but the statement is written as it is.

3) Since the written argument on the grounds of appeal disputing business relationship and the value of the appeal is submitted after the date on which the grounds of appeal are not timely filed, it shall be considered to the extent of supplement in the grounds of appeal.

Note 4) The lower court indicated as “the result of appraisal by the Korea Appraisal Board” No. 2014 Gohap616, No. 319 (No. 6 of the Investigation Records No. 3401 of the Investigation Records), but this constitutes a fact-finding inquiry inquiry by the Korea Appraisal Board against the prosecution.

5) Therefore, we do not decide separately on the assertion of unreasonable sentencing by Defendant 5 (Defendant 4).

6) The sentencing criteria do not apply to the instant crime in the relationship between the previous conviction in the judgment and the latter concurrent crimes of Article 37 of the Criminal Act.

7) The sentencing guidelines do not apply to the instant crime in the relationship between the previous conviction in the judgment and the latter concurrent crimes in the latter part of Article 37 of the Criminal Act.

8) 1) The sentencing criteria are not applied after being indicted on or before July 1, 2014. 2) The basic area of the basic area of the crime of acceptance of bribe [the scope of recommendation] the crime of acceptance of bribe [the scope of the crime of acceptance of bribe] [10 million won or more but less than 30 million won] [1-3 years]] [3] there are multiple crime processing standards at least one year [the crime for which the sentencing guidelines are set and the crime for which the sentencing guidelines are not set are established and the crime for which the sentencing guidelines are not set, multiple crimes are concurrent crimes under the former part of Article 37 of the Criminal Act, so the minimum sentencing criteria of the punishment shall not be applied directly, but the minimum sentencing criteria of the punishment shall be set according to the sentencing guidelines for the crime of acceptance of bribe].

9) However, the lower court did not render a judgment of partial innocence regarding the offering of a bribe by Defendant 5 (Defendant 4).