2014No7671 (a) Act pertaining to the Prevention of Corruption and the Establishment and Operation of the Anti-Corruption and Civil Rights Commission

J.N.N.N.D.

(b) Violation of the Act on the Registration of Real Estate under Actual Titleholder's Name;

(c) Disclosure of official secrets

1.(a)(c) A;

2.2.B

Defendant 1

Criminal Prosecution (Court Prosecution) and Yang Jae-young (Court Trial)

Attorney BV (private election for Defendant A)

Attorney BW, BX (private ships for the defendant B)

Suwon District Court Decision 2014Ra403 Decided November 27, 2014

May 27, 2015

The judgment of the court below is reversed.

Defendant A shall be punished by imprisonment with prison labor for a year and six months, and by imprisonment with prison labor for a period of six months.

However, with respect to Defendant B, the execution of the above punishment is suspended for a period of two years from the date when this judgment became final and conclusive. KRW 691,337,430 from Defendant A, and KRW 296,287,470 from Defendant B shall be collected respectively. The amount equivalent to the above additional collection charges shall be imposed on the Defendants.

1. Summary of grounds for appeal;

A. Defendant A

The punishment sentenced by the court below (one year and six months of imprisonment, surcharge 1,207,851,400 won) is too unreasonable.

B. Defendant B

1) Legal principles

In the case of a contract title trust, since the title trustee acquired the ownership of the real estate held in title trust externally and externally, Defendant B, the title truster, did not acquire the real estate of this case. Therefore, the additional collection under the premise that the said Defendant acquired the real estate of this case was erroneous in the misapprehension of legal principles.

2) Unreasonable sentencing

The punishment sentenced by the court below (the punishment of 6 months in the calendar, the surcharge of 517,650,600 won) is too unreasonable.

2. Judgment ex officio on Defendant A’s violation of the Act on the Prevention of Corruption and the Establishment and Operation of the Anti-Corruption and Civil Rights Commission

A. Summary of this part of the facts charged

On October 2012, Pyeongtaek-si 1 Team established a "promotion plan for a public parking lot development project" with a scale of parking 60 vehicles on three lots in urban planning park sites, such as K 1,290m2, L prior to L 1,472m2, M prior to M 10m2, in order to resolve the high-quality parking shortage of Pyeongtaek-si J-si in early October 2012, and confirmed to implement the above promotion plan on the 19th of the same month after conducting a demand survey on parking demand. Such promotion plan for a public parking lot development project is a matter of significant interest that public offices are not exposed to the general public from an objective and general point of view, and the defendant became aware of the above secrets while promoting the project as the head of Pyeongtaek-si department in charge of the above project.

No public official shall use any confidential information learned in the course of performing his/her duties to obtain, or to have a third party obtain, goods or property gains.

Nevertheless, the Defendant, as the head of the H of Pyeongtaek-si Office, promoted the public parking lot development project, and expected to increase the market price of the site to be created, and notified the Defendant of the fact to B, who was in close relation with the Defendant as a member of the “O,” who is a friendship organization, along with the notification to B, who purchased the land, which is the prospective site for the public parking lot, in advance, and confirmed it as the parking lot site, and confirmed it as the parking lot site, thereby selling it at a low price and selling it to Pyeongtaek-si to realize profits equivalent to the difference, the Defendant purchased the above land together with B, and the Defendant acquired the shares of 70% among them, and raised the remaining 30% shares to B.

Accordingly, the Defendant: (a) purchased the site to implement a public parking lot development project from Pyeongtaek-si in advance at a high price; (b) proposed that “B would be able to receive a large amount of compensation at the low price when accepting in Pyeongtaek-si; (c) agreed to this; (d) on November 9, 2012, the Defendant was not in Seoul, on the ground that the Defendant was Nonparty C, who was an external third village, and B, was the title trustee, on the ground that he was the title trustee of Pyeongtaek-si, which is the planned site for the construction of the public parking lot; (d) concluded a real estate sales contract with the owner of the two lots of land of a length of 713,128,100 square meters prior to the development of the public parking lot in his joint name; and (e) registered the ownership transfer under the name of the owner of the land around December 31, 2012.

As a result, the Defendant acquired 70% shares (value: KRW 1,207,851,400 = KRW 1,725,500 = KRW 1,725,500 + KRW 1,725,502,00) in the above land (value: KRW 517,650 = KRW 650,600 = KRW 1,725,502,00) by using confidential information he/she became aware of in the course of performing his/her duties as a public official, and had a third party acquire the remaining 30% shares (value: KRW 517,650 = KRW 1,725,502,00).

B. The judgment of the court below

The lower court determined that Defendant A purchased the instant land at a low price by using information confidential in the course of performing his/her duties, and thus, determined that the instant land itself was acquired, and that the amount to be presumed would have been equivalent to the benefits that the offender would have lost if he/she had been sentenced to confiscation, and calculated the amount additionally based on the market price at the time the lower judgment was rendered.

C. Judgment of the court below

Article 1 of the former Act on the Prevention of Corruption and the Establishment and Management of the Anti-Corruption and Civil Rights Commission (amended by Act No. 12717, May 28, 2014; hereinafter "the Anti-Corruption and Civil Rights Commission Act") provides that "the purpose of this Act is to protect the basic rights and interests of the people, ensure the propriety of administration, and contribute to the establishment of clean public service and social climate by establishing the Anti-Corruption and Civil Rights Commission with the aim of improving unreasonable administrative systems related to the handling of civil petitions for grievances, preventing corruption and efficiently regulating acts of corruption." Article 2 subparagraph 4 (a) of the Act provides that "public officials shall abuse their status or authority in connection with their duties, or obtain property rights of their own or a third party in violation of Acts and subordinate statutes, and Article 7-2 of the Act provides that "any public officials who have committed acts of corruption and dignity shall not be punished by imprisonment with prison labor for not more than 5 years or by a fine not exceeding 7 (1) of the Act on the Prevention of Corruption and Civil Rights and Rights.".

In light of the language and text, legislative intent, etc. of these regulations, a public official is prohibited from committing an act of corruption to gain his or her own interest or a third party's interest in connection with his or her duties. Article 7-2 of the Anti-Corruption Act provides that "no public official shall obtain or have a third party obtain any property or property interest by using any confidential information he or she becomes aware of in the course of performing his or her duties." In addition, Article 86 (1) of the Anti-Corruption Act provides that a punishment for the act of violation shall be punished, which is protected by the law such as theft, taking advantage of the public official's integrity and integrity of society, and such criminal act of theft, taking the character of the crime of violation, taking advantage of the public official's trust in the course of performing his or her duties, and taking advantage of the public official's integrity and integrity of his or her duties, and it is similar to the crime of breach of trust taking advantage of the public official's trust and integrity of the manager's duty.

According to the evidence duly admitted and examined by the court below, it can be acknowledged that Defendant A, as the head of Pyeongtaek-si Office H of the facts charged, acquired a project promotion plan that was not yet known to the general public while promoting the creation of a public parking lot as recorded in the facts charged, and the land expected to be a parking lot for which the market price is expected to be increased if the plan is determined and known to the general public (hereinafter referred to as “the land in this case”) is purchased in the name of another person with Defendant B, and completed the registration of ownership transfer in its name.

However, the issue is whether Defendant A acquires the instant land using confidential business secrets or whether “the economic benefits from the purchase of the land expected to be high at the market price,” or whether it is “the economic benefits from the purchase of the land.” If the acquisition using confidential business secrets is the land itself, it would be necessary to confiscate the instant land or collect the entire value of the land. However, if the market price is the economic benefits from the purchase of the land expected to be high, it would be necessary to collect only the amount calculated by deducting KRW 713,128,100, which was paid as purchase price from the purchase price of the land. As long as Defendant A purchased the instant land in violation of the prohibition of Article 7-2 of the Anti-Corruption Act and completed the registration of ownership transfer, acquisition by Defendant A using confidential business secrets does not have room to regard it as the instant land itself, but it would be more consistent with sound common sense and social norms to view that Defendant A’s acquisition by using confidential business secrets is not the instant land itself, but rather the economic benefits from the purchase of the land anticipated to enhance the market price.

① Defendant A did not have acquired, or had to take, the instant land free of charge by using a professional secret. The purchase price was paid for the larger amount of KRW 713,128,100. As long as Defendant A acquired, or had acquired, the instant land expected to be promoted at the market price, but acquired, or had acquired by paying, a considerable amount of purchase price, it is reasonable to deem that Defendant A acquired, or had acquired, unjust pecuniary benefits by purchasing the instant land, the market price of which is anticipated to be promoted, rather than unfairly acquired or acquired, using the Defendant AO’s trade secret.

② Since Article 7-2 of the Anti-Corruption Act provides that “public officials shall not obtain, or have a third party obtain, property or property benefits by using confidential information known to them in the course of performing their duties,” there is no problem to regard that Defendant A acquired the instant land itself as long as the acquisition of the instant land by using professional confidential information and completed the registration of transfer of ownership. However, most of the criminal acts of acquiring property or property benefits by using professional confidential information are likely to be conducted through legal acts, such as sale, exchange, etc., the means of such criminal acts, the object of the legal act, and the object of the criminal act, which is the acquisition of property, should be distinguished from that of an executive or employee of a financial institution. If an executive or employee of a financial institution pays and purchases the land expected to increase its market value, the object of the criminal act, which is the acquisition of property, is a property interest in which the market value is anticipated to have been purchased by the borrower and thus, the object of the commercial act, which is the object of the loan, should be considered as a property interest in the lending of money to the borrower.

③ In the case of bribery, the object of the bribery is a bribe and generally defined as an unjust profit in relation to the duties. However, in a case where a public official borrowed money from a person with indefinite interest in connection with the relevant work, the actual profit which the consignee received is equivalent to the interest-free loan amount, and thus, in the above case, the financial profit is a bribe (see, e.g., Supreme Court Decision 2004Do1442, May 28, 2004). In addition, in relation to his duties, the purchase of the shares of the land secured for recompense who is expected to enhance the market price in the future at the successful bidder in the land secured for recompense regarding the land secured for recompense as a bribe was provided with an opportunity to participate in the speculative business, and it is difficult to view that the shares of the land secured for recompense as a bribe itself falls under the category of the acceptance of bribe (see, e.g., Supreme Court Decision 94Do129, Nov. 4, 194).

Of course, even if a public official contributed part of the amount equivalent to the value of a bribe as expenses or provided other economic benefits to the other party for the acquisition of a bribe, it shall be deemed that such contribution is only incidental expenses paid for the acceptance of a bribe, and since the bribe received by a public official cannot be deemed as limited to an objection equivalent to the remaining value after deducting the above expenditure from the value of the bribe, the bribe itself shall be confiscated, and the profit gained from the public official shall not be confiscated and collected from the value of the bribe, but only the remaining value after deducting the above expenditure from the value of the bribe shall not be confiscated and collected (see Supreme Court Decision 9Do1638, Oct. 8, 199). In this case, whether it is only incidental expenses paid for the acceptance of the bribe shall be determined in accordance with sound common sense and social norms. It is difficult to deem that the incidental expenses paid for the acquisition of the land in this case are merely incidental expenses.

Meanwhile, Article 357(1) of the Criminal Act provides that "a person who acquires property or benefits to property in return for an incidental solicitation in connection with his/her duties shall be punished by imprisonment with labor for not more than five years or by a fine not exceeding 10 million won." Article 357(3) provides that "the property acquired by the criminal shall be confiscated. If it is impossible to confiscate such property or gains pecuniary benefits, the equivalent value thereof shall be collected." Article 86(1) and (3) of the Anti-Corruption Act provides a penal provision similar to Article 86(1) and (3) of the Act on Prevention of Corruption. However, where a person who administers another's business prepares and receives a supply contract stating that one of the above 32,24,000 won shall be sold to the members of the association in exchange for an illegal solicitation in connection with his/her duties, it shall be deemed that the criminal acquired the above 32,200 square-type 10,000 won as property gains from the purchaser of apartment bonds (see Supreme Court Decision 2014Do1274, Feb. 14, 2014.

④ If Defendant AD’s acquisition or acquisition by using Defendant AD’s trade secret is not a property interest in purchasing the land expected to be economic enhancement, but is deemed as the land itself, the pertinent land itself should be confiscated or collected in full pursuant to Article 86(3) of the Anti-Corruption Act. This is too harsh, and it is difficult to deem that Defendant A acquired or acquired the pertinent land as an illegal profit, and thus, it is likely to violate the constitutional law interpretation, as such, there is a need to interpret the constitutional law.

(5) In a crime of fraud, the content of the taking-off of the property is a violation of the victim's property by deception, if there is any provision of the property by deception, thereby establishing fraud immediately. Even if considerable consideration has been paid or no damage has occurred to the whole property of the victim, the establishment of fraud does not affect the conclusion of the crime of fraud. In a case of fraud, even if such consideration has been partially paid, not the difference between the value of the property given from the victim and the value of the property given by the victim, but the delivery team is not the whole property (see, e.g., Supreme Court Decision 2006Do7470, Jan. 25, 2007) or the whole property (see, e.g., Supreme Court Decision 2006Do7470, Jan. 25, 2007). This legal principle is not applicable to the crime of taking-off of occupational secrets under the Anti-Corruption Punishment Act, which

Nevertheless, the court below convicted Defendant A of violating the Anti-Corruption Act that Defendant A acquired the instant land itself or had Defendant B acquire it by using occupational secrets. In this case, the court below erred by misapprehending the legal principles on the meaning of property or property interest as provided in Article 7-2 of the Anti-Corruption Act, which affected the conclusion of the judgment.

Therefore, among the judgment below, the part of the crime of violation of the Prevention of Corruption Act by Defendant A and the remaining crimes related to concurrent crimes under the former part of Article 37 of the Criminal Act should be reversed

2. As to Defendant B’s assertion

A. Part concerning misapprehension of legal principle

1) In cases where a public official, using confidential information known to him/her in the course of performing his/her duties, acquired goods in his/her name by another person, and where it is possible to evaluate that another person’s acquisition of goods is the same as that of a public official’s direct acquisition of goods by social norms on the grounds that the other person acquired goods as a deceased person or an agent of a public official, or other ordinary public official bears the burden of living expenses of the other person, or bears the obligation to the other person, it cannot be deemed that the third person acquired goods (see, e.g., Supreme Court Decision 2007Do7725, Mar. 26, 2009).

According to the evidence duly adopted and examined by the court below, the defendants 1 purchased the land in this case which is anticipated to be promoted in the city, and the defendant 2 purchased the land in this case under the joint name of the title trustee Eul and completed the registration of ownership transfer under the name of the title trustee Eul. ① The title holder of the land in this case C and D did not acquire any compensation or benefits in relation to the title trust in this case. ③ The defendants acted in accordance with the orders of the defendants related to the title trust, ③ all decisions related to the land in this case, as well as their related expenses were borne by them, and their profits were all brought about. ④ The defendant 2 was at issue as a violation of the Act on the Registration of Real Estate under Actual Titleholder's Name in relation to the land in this case, and the fact that the registration of ownership transfer was completed in their own name as to the land purchased in the name of Pyeongtaek-si 1,266 square meters shares in the name of the title trustee.

According to these facts, the part of the land of this case, the transfer registration of which was completed under the name of Defendant B and D, constitutes the so-called contract title trust, and the ownership of this share is acquired. However, this can be evaluated as having been directly acquired by Defendant B, a title truster, under social norms. Therefore, this part of the misapprehension of legal principles as to Defendant B’s assertion is without merit.

2) However, as seen in Paragraph 2, Defendant A’s acquisition or acquisition by using the occupational secrets is not itself of the instant land, but the economic profit from the purchase of land expected to enhance the market price, etc., but it is assumed that the original ginseng acquired or acquired the instant land itself, and thus, Defendant B was additionally collected. As such, the part of the lower judgment regarding the additional collection against Defendant B cannot be reversed.

B. The portion of unfair sentencing

Defendant B actively participated in the solicitation of Defendant A and played a key role in the entire crime, and the nature of the crime is very poor.

However, in full view of the following circumstances: (a) Defendant B acknowledges and reflects all of his criminal acts; (b) the said Defendant has no criminal records of the same kind and suspension of execution or more; and (c) the said Defendant is liable only for a violation of the previous Act on the Protection, etc. of Real Estate under Actual Titleholder’s Name; and (d) other various circumstances, including the above Defendant’s age, character and conduct, environment, details and contents of the crime; and (e) the circumstances after the crime, etc., the sentence imposed by the lower court

Therefore, this part of the above defendant's assertion is justified.

4. Conclusion

Therefore, the judgment of the court below is reversed pursuant to Article 364 (2) of the Criminal Procedure Act without examining the defendant A's assertion of unfair sentencing, and the judgment below is reversed, and it is again decided as follows after pleading.

【Discretionary Judgment】

Criminal facts and summary of evidence

The summary of the facts charged by this court and the evidence thereof are as follows: "The defendant, as a public official, acquired 7/10 of shares in the above land (value: 1,207,851,400 won 1,725,502,00 won x 70%) out of 70 percent shares in the above land (value: 1,207,851,400 won : 1,725,502,000 x 70 percent x 30 percent of shares (value: 517,650,600 = 1,725,500 x 30%) among the above 30 percent shares in the above land (value: 517,650,600 won = 1,725,500 x 30 percent of shares in the process of performing his/her duties) by using confidential information that he/she has become aware of in the process of performing his/her duties as a public official."

Application of Statutes

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

A. Defendant A: Articles 86(1) and 7-2 of the Anti-Corruption Act (violation of the duty of prohibiting the Use of Confidential Information); Article 127 of the Criminal Act (Divulgence of Official Secrets); Articles 7(1)1 and 3(1) of the Act on the Registration of Real Estate under Actual Titleholder’s Name (title trust) and each decision of imprisonment, respectively.

B. Defendant B: Articles 7(1)1 and 3(1) of the Act on the Registration of Real Estate under Actual Titleholder’s Name; Articles 7(1)1 and 3(1)

1. Aggravation for concurrent crimes (Defendant A);

Articles 37 (former part), 38 (1) 2, and 50 of the Criminal Act

1. Suspension of execution (Defendant B);

Article 62(1) of the Criminal Act

1. Collection of additional dues (the defendants);

Article 86(3) of the Prevention of Corruption Act [Defendant A: 691,37,430 won (sale price of KRW 1,700,753,00 - Purchase price of KRW 713,128,100)] 】 70% equity of the above defendant 】 296,287,470 won [30% equity of the above defendant - Purchase price of KRW 713,128,100] 1.

Article 334(1) of the Criminal Procedure Act

The reason for sentencing against Defendant A

There are more favorable factors for sentencing, such as the fact that Defendant A had an attitude to recognize and reflect all of his criminal acts in the first instance, that the above Defendant has no criminal record of the same kind and suspended execution, and that the above Defendant has lost public office due to the instant case and is subject to collection of all profits from the instant crime.

However, there is a need to strictly punish the crime of this case in that Defendant A disclosed confidential information learned during the process of performing public service, acquired or acquired pecuniary benefits from the purchase of land expected to boost the market price by using the above confidential information, and the nature of the crime is very poor, and such act causes public officials' trust. In addition, the aforementioned Defendant’s age, character and behavior, occupation and environment, the circumstances and result leading to the crime of this case, and all of the sentencing factors shown in the records and arguments, shall be determined as ordered by taking into account the following factors.

Parts of innocence

The summary of the charge of violating the Anti-Corruption Act against Defendant A is the same as that of the above 2-A, which constitutes a case where the crime is not committed or there is no proof of a crime, and thus, the acquittal should be pronounced pursuant to the former or latter part of Article 325 of the Criminal Procedure Act. However, as long as it is found that Defendant A was guilty of a violation of the Anti-Corruption Act due to the acquisition of property profits within the scope of the same charge, the judgment of innocence shall not be

The presiding judge, the judge and the remaining judge

Judges Lee Dong-young

Judges Choi Young-hoon

1) In this purport, Supreme Court Decisions 2006Do4888 Decided November 9, 2006 and Supreme Court Decision 2007Do7725 Decided March 26, 2009

2) Considering that the acquisition by Defendant A is not itself of the instant land, but the economic benefits that purchase the instant land expected to be expected to boost the market price, is a crime favorable to the above Defendant. Since it does not disadvantage the above Defendant’s exercise of his right to defense, it is recognized ex officio without changing the indictment.