A. Violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (Bribery)

(b) Offering of bribe;

1. A.

2.(a) B

3.(a) C.

4.(a)D

5.(b) E.

Kim Jong-tae (prosecution) and Noh Jeong-ok (public trial)

Law Firm F, Attorneys G (Defendant A)

Law Firm H, Attorney I (Defendant B)

Attorney J (Korean Tribunal for Defendant C)

Attorney K (for defendant D)

Attorney L (Korean National Assembly for Defendant E)

August 8, 2014

Defendants are not guilty.

1. Facts charged;

From May 2005, Defendant A worked as the chairperson of the promotion committee for housing redevelopment in Busan Northern-gu M (area 32,876m, total amount of 588 units) from around January 27, 2007, and was elected as the president of the N Zone Housing Redevelopment and Improvement Project Association (hereinafter referred to as the "Union") around January 27, 2007, and was registered as the president of the partnership on April 16, 2007, and was in charge of the overall affairs of the partnership until the partnership is dissolved by revocation of approval for establishment on May 28, 2013.

Defendant B, from April 16, 2007 to May 28, 2013, was in charge of the management of union members and the accounting and accounting and accounting of union.

Defendant C and Defendant D, from April 16, 2007 to May 28, 2013, were in charge of participating in the important decision-making of an association as a director of the said association and managing its members.

Defendant E is the 0 representative director of the removal service company, which was selected as the removal service company of the above NN Housing Redevelopment Project and entered into a contract for the "contract for the demolition of building structures and remaining disposal works" with the partnership.

Defendant A, Defendant B, Defendant C, and Defendant D are those who are deemed public officials under the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents.

A. Joint criminal conduct by Defendant A and Defendant B

around January 2007, the Defendants consulted with each other so that they can be selected as the removal service company of the Nan District Housing Reconstruction Project at the partnership's partnership office located in the Busan Northern District P, from the representative director E of the corporation selected as the removal service company of the Qan District Housing Reconstruction Project, and agreed to participate in the bid of the removal service company located in the future. In the process of the bid of the removal service company located in the partnership's supervision, the Defendants conspired to receive total of KRW 200 million in order after the selection of the removal service company in order to receive the total of KRW 20 million.

From January 3, 2007 to April, 2007, the Defendants received KRW 50 million in cash as the price for the selection of the removal service company from the above E at the mutual coffee shop located in front of the Busan Busan District Court.

The Defendants conspired to do so and received a bribe in relation to the duties of public officials by receiving a total of KRW 150 million from the above E in the name of the cost of selecting the removal service company from three times, such as the No. 1 to 3 of the list of offenses, from May 11, 2007.

B. Joint criminal conduct by Defendant A, Defendant B, Defendant C, and Defendant D

Defendant A and Defendant B received the same solicitation as described in paragraph (1) from the above E, and accepted it on June 2007, and then the partnership selected the removal service company, Defendant C and Defendant D, the director of the partnership, as the above director of the partnership, changed to the extent that they can be selected as the removal service company. Accordingly, the amount of KRW 50 million in return for the company. The amount of KRW 50 million received from the company is divided equally and divided equally, and Defendant C and Defendant D accepted it.

On June 2007, the Defendants, at the above partnership office, selected the Defendants as the removal service company at the general meeting of the partnership around July 20, 2007, by exercising their voting rights so that the directors can be selected at the time of the resolution of the board of directors on the selection of the removal service company.

On August 14, 2007, the Defendants received a total of KRW 40 million from the above E in terms of the consideration for the selection of the removal service provider at the SS restaurant, which is an exclusive model store in the vicinity of the Busan Northern-gu, Busan, and received a total of KRW 40 million from the above E in terms of the consideration for the selection of the removal service provider.

The Defendants conspired to do so from that time until February 25, 2008, and received a total of KRW 50 million from the above E in consideration of the selection of the removal service company, such as the No. 4 and No. 5 of the list of offenses, from that time until February 25, 2008, and received a bribe in connection with their duties.

C. Defendant E

From January 3 through February 4, 2007 to February 25, 2008, the Defendant offered a bribe in relation to the official duties of the public official by providing five hundred million won as shown in the attached list of crimes, upon soliciting that the director of the corporation he/she operated to A, B, C, and D may be selected as a removal service company of the Nan District Housing Redevelopment Project, as described in paragraphs (1), (2).

2. Determination

(a) Facts of recognition;

According to the evidence duly adopted and examined by this court, the N District Housing Redevelopment Project Association was authorized to establish the N District Housing Redevelopment Project Association on April 9, 2007 and registered its incorporation on April 16, 2007 and appointed Defendant A to the partnership head, Defendant B, C, and D as directors, due to the low progress in implementing the rearrangement project, and the authorization to establish the partnership was revoked on May 28, 2013 upon request of the association members or owners of land, etc., and accordingly, the said association was dissolved, and the designation of N District Housing Redevelopment Project Association and the improvement plan was revoked on October 9, 2013 due to the absence of the project owner.

(b) Relevant legal principles;

Article 84 of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (amended by Act No. 9444 of Feb. 6, 2009; hereinafter referred to as the "former Act on the Maintenance and Improvement of Urban Areas") provides that in applying Articles 129 through 132 of the Criminal Act, executives of unions and employees of management contractors of rearrangement projects (referring to executives in cases of a corporation) shall

In addition, Article 8 (1) of the former Act on the Maintenance and Improvement of Urban Areas provides that "a cooperative" as referred to in Article 13 refers to a cooperative under Article 13 as an implementer who can implement a housing redevelopment project, and Article 13 provides for the requirements, procedures, etc. for the establishment of a cooperative consisting of owners of land, etc. to implement a rearrangement project. In addition, Article 20 (1) 5 of the former Act provides that "a partnership" refers to an "executive of a cooperative under Article 21" and Article 21 (1) provides that a cooperative shall have one head, a director, and an auditor as its executive.

In full view of the above provisions, a "executive of a cooperative deemed a public official in the application of the crime of acceptance of bribe under Article 84 of the former Act" means a person who is the head of a cooperative, director, or auditor established by an association consisting of owners of a plot of land, etc. in order to implement a rearrangement project under Article 13 of the former Act.

Meanwhile, pursuant to Article 18 of the former Act, an association consisting of owners of a plot of land, etc. and intends to implement a rearrangement project shall be established upon registration after meeting the requirements and procedures prescribed by relevant Acts and subordinate statutes, including Articles 13 through 17, and the status of an administrative body implementing a rearrangement project within the rearrangement zone under the supervision of the competent administrative agency only once. Here, an administrative agency’s disposition imposing authorization to establish an association has the nature of a kind of authority-based disposition granting the status as an administrative body with authority to implement a rearrangement project (see, e.g., Supreme Court Decisions 2008Da60568, Sept. 24, 2009; 2009Du4845, Jan. 28, 2010).

Therefore, where an association composed of owners of a plot of land, etc. did not obtain authorization to establish an association in the process of its establishment or even if such authorization was obtained, it cannot be said that an association was established as a public corporation, which is an administrative body having the authority to implement an improvement project under Article 13 of the former Act, and the head of such association, director, or auditor cannot be deemed an executive officer of an association under the former Act (see, e.g., Supreme Court en banc Decision 2012Do7190, May 22, 2014).

C. Determination

The association of this case was dissolved ex officio upon the application for dissolution of association members, etc. under Article 16-2 (1) 2 of the Act on the Maintenance of Urban Areas and Dwelling Conditions for Residents, etc.

As seen earlier, an administrative agency’s disposition of approving the establishment of an association composed of owners of land, etc. is not merely a disposition of nature as a supplementary act against the establishment of an association among private persons, but an authoritative disposition that grants the status of an administrative body that can implement an improvement project as a public corporation only when it satisfies certain requirements prescribed by law.

Therefore, even if the disposition to establish a housing reconstruction project is revoked ex officio by the administrative agency, the disposition to establish a housing reconstruction project becomes retroactively effective at the time of the disposition, and accordingly, the housing reconstruction project association also becomes an administrative agent that can implement the housing reconstruction project under the Urban Improvement Act retroactively at the time of the disposition to establish a housing reconstruction project.

The interpretation of penal provisions must be strict, and the interpretation of the explicit penal provisions in the direction unfavorable to the defendant is not permitted in light of the principle of no crime without the law. The "executive officer of a cooperative" under Article 84 of the former Urban Improvement Act is a constituent element for the establishment of a crime by which the status of a public official is deemed as a crime in the crime of bribery, and the above provision requires strict interpretation of the scope of "executive officer of a cooperative" should be subject to the crime of acceptance of bribe, etc., of which the statutory punishment is considerably high compared to the crime of acceptance of bribe, which

The Supreme Court recently held that, where a management entity specialized in improvement projects prescribed by the former Act is a stock company, "executive officers deemed public officials under Article 84 of the same Act" shall be deemed to be limited to the representative director, directors, and persons registered as auditors in the commercial register at the time of acceptance of bribery falling under Articles 129 through 132 of the Criminal Act. Even if a actual manager is a stock company, interpreting that a management entity specialized in improvement projects who is deemed public officials under Article 84 of the former Act constitutes "executive officers of a management entity specialized in improvement projects who are deemed public officials under Article 84 of the same Act" is excessively inferred or expanded in the direction unfavorable to the defendant, and thus, it is not permissible since it violates the principle of no punishment without law (see Supreme Court Decision 2013Do9690, Jan. 23

In addition, the Supreme Court held that it is not permitted to violate the principle of no crime without the law because it excessively expands or analogicalizes criminal laws to the disadvantage of the defendant and thus it is not permitted to violate the principle of no crime without the law, since it means one president, director, and auditor appointed by the resolution of the general meeting of the association for the maintenance and improvement project pursuant to Article 21 and Article 24 (3) 8 of the former Act (see Supreme Court Decision 201Do17145, May 26, 201).

In this context, even if the status of a public corporation and its officers as an administrative body promoting a rearrangement project on the premise that the disposition to establish an association is valid, if the disposition to establish an association loses its validity retroactively at the time of the disposition to establish an association due to the cancellation of the disposition to establish an association, the association also lose its status as a public corporation, which is an administrative body that can implement a housing reconstruction project under the Urban Improvement Act retroactively at the time of the disposition to establish an association, and therefore, there is no room to apply the provisions of Article 84 of the former Urban Improvement Act, which is deemed as a public official on the premise of the status of an association’s officers

Therefore, Defendant A, B, C, and D do not constitute an officer of a union deemed as a public official in the crime of bribery, and cannot be the subject of the violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (Bribery), and cannot be punished for the act of Defendant E which provided money to them.

3. Conclusion

Thus, since each of the facts charged in this case against the defendants constitutes a case that does not constitute a crime, the defendant shall be acquitted under the former part of Article 325 of the Criminal Procedure Act.

Judge of the presiding judge;

Judges Park Jong-chul

Judges Shin Dong-dong

A person shall be appointed.