[2] Requirements for establishing a joint principal offender of the crime of acceptance of bribe to a public official and a person who is not a public official (non-public official) / In a case where a public official had a public official provide a bribe to a non-public official in a joint principal relationship with a public official of the crime of acceptance of bribe, whether the crime of acceptance of bribe is established is established (negative)

[3] The meaning of the benefit that is the content of the bribe in the crime of acceptance of bribe / The meaning of the “receiving” in the crime of acceptance of bribe, and whether the legal ownership of the bribe should be acquired (negative)

[4] The meaning of “Bribery” and “illegal solicitation” in the crime of bribery against a third party, and the standard for determining whether there was an unlawful solicitation or a bribe related to his/her duties

[5] The meaning and contents of “Intimidation” as a means of the crime of coercion, and the standard for determining whether a person under intimidation has been informed of harm that may cause fear or fear of harm to the person under intimidation / In a case where an actor, who is in an occupation or position that may have an influence on his/her duty or position, demands the other party to provide certain benefits, etc. on the basis of his/her occupation or position, whether it can be readily determined as intimidation (negative), and the standard for determining whether the required act constitutes a threat

In a case where a document recording a statement is used as direct evidence of a crime, said document is considered hearsay evidence; however, said document is not always considered hearsay evidence when it is used as circumstantial evidence for an indirect fact unrelated to the authenticity of the statement. However, in a case where: (a) the admissibility of a document recording a statement is recognized on the ground that it would be used as circumstantial evidence of the fact itself as to the fact that the statement was made; and (b) said fact is again used as an indirect fact proving the contents of the statement or its authenticity, said document constitutes hearsay evidence. This is because the document is used to substantiate a fact comprising the original statement written therein, and becomes an essential fact requiring proof. In such a case, said document is inadmissible unless it does not satisfy the requirements prescribed in Articles 311 through 316 of the Criminal Procedure Act.

[2] [Majority Opinion] In a case where a person without a personal relationship processes a crime established in consequence of his/her personal relationship, a person with a personal relationship and an accomplice is established (see the main sentence of Article 33 of the Criminal Act). In such a case, if the subjective and objective requirements, such as the commission of a crime through the intent of joint processing and functional control based on the intent of functional control, are satisfied, joint principal offenders shall be punished. Joint principal offenders are established as provided in Article 129(1) of the Criminal Act, provided that a person who is not a public official (hereinafter “non-public official”) jointly commits a specific crime with another person’s intent to commit a specific crime. Therefore, if a person who is not a public official (hereinafter “non-public official”) commits a crime that accepts a bribe in relation to the public official’s duties through a functional control based on the intent of joint processing with a public official, the public official may be deemed as having received a bribe

In a case where a public official, separate from the crime of acceptance of bribe under Articles 130 and 129(1) of the Criminal Act, separately from the case of the crime of acceptance of bribe, in a case where a public official, separately from the case of the crime of acceptance of bribe, had a third party deliver a bribe to a third party in connection with his/her duties, the criminal punishment for the crime of acceptance of bribe and the statutory punishment for the crime of acceptance of bribe are the same as that for the crime of acceptance of bribe. In a third party’s crime of acceptance of bribe does not require a third party to recognize that a bribe is a bribe. However, in a case where a public official had a public official, who is in a joint principal relation with a public official and a non-public official, deliver a bribe to himself/herself, a public official may be deemed to have been granted a bribe. A non-public official who is in a joint principal relation with a public official cannot be a third party referred to

In a case where an explicit or implicit public offering relationship between the accomplices of the crime of acceptance of bribe and one of the accomplices provided money and benefits in accordance with the contents of the public offering, barring any special circumstance, barring any special circumstance, the joint principal offender of the crime of acceptance of bribe is established as to the whole of the money and valuables or benefits, and there is a prior communication among the accomplices on the size and degree of the money and valuables or benefits, or a joint principal offender is not established.

After the establishment of a joint principal offender of the crime of acceptance of bribe with respect to all money and other valuables and profits, the existence of a bribe belongs to either a public official, or a non-public official, who is a joint principal offender, does not affect the already established crime of acceptance of bribe. Even if a public official or a non-public official knew to vest a bribe in advance to a non-public official, or used or consumed a bribe due to its nature, such circumstance is merely a matter concerning the handling of

[Concurring Opinion by Justice Jo Hee-de, Justice Ahn Jae-chul, and Justice Lee Dong-won] In a case where a public official and a non-public official committed a crime of accepting a bribe in connection with the public official’s duties through joint processing intent and functional control based on the functional control over the same, joint principal offenders of the crime of acceptance of bribe under Article 129(1) of the Criminal Act may be established against the public official and non-public official. However, in a case where it is evident that a public official and a non-public official would have become ambiguous in advance to assign a bribe to a non-public official upon the receipt of the bribe or that a non-public official will fully use or consume a bribe in light of the nature of the bribe, if a public official had a non-public official given a bribe to a non-public official, the establishment of the crime of acceptance of bribe by a third person under Article 130

[Concurring Opinion by Justice Park Sang-ok] The Majority Opinion’s logic consents to the general theory on the establishment of the crime of acceptance of bribe between a public official and a non-public official; however, it does not agree to the part that deemed joint principal offenders of the crime of acceptance of bribe even in a case where a non-public official uses or consumes a bribe in light of the nature of the bribe. As long as Article 129(1) of the Criminal Act provides for a crime of acceptance of bribe in addition to the crime of acceptance of bribe under Article 130 of the Criminal Act, in a case where a non-public official receives a bribe by a third party who is not a public official, it shall be evaluated differently, depending on what the principal body and nature of the bribe belong, whether the crime of acceptance of bribe

[3] In the crime of bribery, the benefit which is the substance of a bribe includes money, goods, and other property interests, and all tangible and intangible benefits sufficient to satisfy human demand. The term “receiving” as stated in the crime of acceptance of bribe means acquiring a bribe, i.e., acquiring a de facto right to dispose of a bribe. Here, acquisition means acquiring a right to dispose of a bribe, and does not require the legal ownership of a bribe. Even if a bribe does not meet the legal requirements for acquisition of ownership, if the bribe acquired possession of a thing offered as a bribe and did not demand the return thereof from the bribeer or legal owner, the bribe itself shall be deemed to have the right to actually use and dispose of the thing and shall be deemed to have been received as a bribe.

In a case where a bribe trustee acquired the authority to actually use and dispose of the goods in an internal relationship with the bribeer, but conceals the fact of acceptance of a bribe or reserves the formal requirements of transfer of ownership in order to continuously bear expenses for the goods, the said goods shall be deemed to have been received as a bribe inasmuch as the ownership is not different from the transfer of ownership between the bribeer and the bribeer. Since the goods received by the bribeer are not returned to the bribeer, the intent to obtain the said goods is also recognized.

[4] The elements of the crime of bribery against a third party under Article 130 of the Criminal Act are the act of causing a public official or an arbitrator to give a bribe to a third party in exchange for an illegal solicitation in connection with his/her duties. Here, the term “Bribery” refers to illegal and unjust gains delivered to a third party by means of an illegal solicitation in connection with a public official’s duties, and the crime of bribery against a third party

The term “illegal solicitation” includes not only cases where a solicitation contains unlawful or unreasonable performance of duties, but also cases where the performance of duties subject to solicitation is related to the grant of consideration for the performance of duties by linking the performance of duties with a certain consideration relationship, even if the performance of duties is not illegal or unjust. The details of the act of performing duties subject to solicitation do not need to be specifically specified. The details of the illegal solicitation are sufficient to specify the contents of the act of performing duties subject to solicitation to the extent that it can be recognized as a quid pro quo relationship between the public official’s duties and the profits provided to a third party. Not only the pending issues already occurred but also the pending issues anticipated to be future may be the contents of the illegal solicitation if they are specified to the extent above. The illegal solicitation may be made by an implied declaration of intent where there is a common perception or understanding between the parties with regard to the contents of the performance of duties subject to solicitation

In determining whether a third party constitutes a bribe in relation to his/her duties or an illegal solicitation is made, the basis is whether the number of benefits is suspected of being fair in the performance of duties from the general public, in light of the legal interests and interests of the bribery, which are the fairness in the performance of duties, trust in society, and the impossibility in the performance of duties, and the contents of solicitation, the relationship between the public official and the benefit provider, the degree of benefits and the timing of receiving benefits, etc.

[5] [Majority Opinion] The crime of coercion is an offense that interferes with another person’s exercise of right by assault or intimidation or causes another person to perform an act without any duty. Here, intimidation refers to objectively restricting the freedom of decision-making or notifying harm and injury likely to be drinking to the extent that it interferes with the freedom of decision-making. In order to recognize such intimidation, there is a concrete threat of harm and injury to the extent that it may be deemed possible to occur.

A threat of harm and injury is sufficient to have the perception that it would cause harm and injury to the other party through speech or behavior, even though it is not necessarily a clear way, and may be indirectly made through a third party. A threat of harm and injury may also be made even in cases where an offender demands illegal delivery of property or property benefits, and causes fear that the other party would suffer unfair disadvantages if the other party refuses to comply with the demand based on his/her occupation, status, etc. based on his/her occupation, position, etc., the threat of harm and injury may also be made. Whether a threat of harm and injury has been made to the extent that the person is likely to cause harm and injury shall be determined by taking into account relevant circumstances, such as duties

Even if an actor has an occupation or position that may have an effect on another person in the course of performing his/her duties or in fact, and demands on the basis of his/her occupation or position, the act should not immediately be readily concluded as a threat of harm and injury. In particular, if a public official demands a public official to provide a public official himself/herself or a third party designated by him/herself with property interest or any tangible or intangible profit on behalf of the public official, and the other party expectations any benefit in relation to his/her duties and accepts the demand in consideration of such an expectation, barring any other circumstance, it is difficult to readily conclude that the said demand by a public official is a threat of harm and injury that

When an actor requests the other party to provide a certain interest, etc. on the basis of his occupation or position, whether the required act constitutes a threat of harm and injury as a means of coercion ought to be determined by taking into account not only the position of the actor, but also the content and circumstances of such speech and behavior, the situation at the time of the demand, and whether the perpetrator and the other party’s character, career, trade relationship, etc. may have the other party perceived that the refusal to comply with the demand would have been a threat of harm and injury, and whether the perpetrator and the other party could have reasonably anticipated such harm and injury that may have been inflicted on the other party as a perpetrator. If an actor requests the other party to provide a certain interest, etc., if the perpetrator cannot be recognized as a threat of harm and injury, it is difficult to establish a crime of coercion requiring intimidation

[Concurring Opinion by Justice Park Jung-hwa, Justice Min You-sook, and Justice Kim Seon-soo] As pointed out by the Majority Opinion, solely on the sole basis that an actor is in a position that may affect the other party, a demand based on his position cannot be promptly evaluated as a threat of harm and injury. Whether such a demand may be evaluated as a threat of harm and injury should be determined by comprehensively taking into account not only the relationship and status between the actor and the other party, but also the content of the demand, the situation at the time of the demand, the situation at the time of

The Supreme Court has consistently held that a threat of harm and injury in the past is a threat of harm and injury, if it is sufficient to have the other party be aware that it would cause harm and injury by language or behavior. The Supreme Court has consistently held that a perpetrator may cause harm and injury to the other party when he/she fails to comply with a specific demand by using illegal perjury based on his/her status, etc. This is a threat of harm and injury even in cases where the perpetrator’s demand constitutes a threat of harm and injury in the event of his/her failure to comply with such demand. This is that a request by the perpetrator, as a means of coercion, shall be determined by taking into

1. Whether the legal proceedings are unlawful and whether Defendant 2’s business pocket book and statement (hereinafter “Defendant 2’s business pocket book, etc.”) are admissible as evidence

A. Whether the litigation procedure against Defendant 1 is unlawful

1) The lower court determined as follows.

A) Although the President is not charged with criminal charges during his/her service except for insurrection or foreign exchange crimes (Article 84 of the Constitution of the Republic of Korea) and Defendant 1’s indictment as the President’s accomplice is not contrary to this.

B) In the instant case, the indictment of abuse of authority and obstruction of another’s exercise of rights (hereinafter “ abuse of authority”) and coercion is not a double indictment for committing a violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (Bribery) due to bribery to a third party.

C) Since the part of the facts charged alleged by Defendant 1 does not constitute a violation of the principle of an indictment only, since it does not constitute a violation of the principle of an indictment only.

D) A dispatched prosecutor as prescribed by the Act on the Appointment, etc. of Special Prosecutors for the Investigation of the Cruel Incident by Private Sector, including the ○○○○○○○, by the Park Jong-Hy-Hy Government (hereinafter “Special Prosecutor Act”) may participate in the maintenance of public prosecution under the direction and supervision of the special prosecutor or the assistant special prosecutor.

E) After the prosecutor prosecuted Defendant 1 as the crime of abuse of authority and coercion related to △△ Group, he was charged with the crime of coercion and the crime of coercion, and did not prosecute Defendant 2 as an accomplice in this part of the Act on the Aggravated Punishment of Specific Crimes related to △△ Group and △△ Group, and the special prosecutor prosecuted Defendant 2 as the crime of abuse of authority and coercion related to △△ Group, and subsequently indicted for an additional indictment by the special prosecutor as the crime of violation of the Aggravated Punishment of Specific Crimes Act (Bribery) does not constitute abuse

F) There is no error in the court of first instance with regard to the decision prohibiting meetings, issuing additional detention warrant and making a renewal of detention period, designating and proceeding a trial date, exercising jurisdiction over a lawsuit, sentencing procedure, consolidation of pleadings, and adoption of a motion for examination of evidence, etc.

2) Examining the reasoning of the lower judgment in light of the relevant legal principles and evidence duly admitted, the lower court did not err in its judgment by misapprehending the legal principles on the criminal procedure and the rights of the Defendant, such as the privilege of the President against prosecution, the principle of no punishment without the law, the prohibition of analogicalization and expansion, the interpretation of the principle of an indictment only, the principle of an indictment only, the interpretation of the special prosecutor and the prosecutor’s authority, the abuse of the right of public prosecution, the

B. Whether Defendant 2’s business pocket book, etc. is admissible as evidence

1) Whether it constitutes hearsay evidence

A) As a matter of principle, the Criminal Procedure Act does not recognize the admissibility of hearsay evidence under Article 310-2, and recognizes it only on an exceptional basis if the requirements prescribed in Articles 311 through 316 are met. Whether a statement based on another person’s statement constitutes hearsay evidence is determined depending on what is the fact requiring proof. Where a fact that is the content of another person’s statement, i.e., the original statement, is a fact requiring proof, said fact is hearsay evidence; however, where the existence of the original statement itself is a fact requiring proof, said fact is deemed hearsay evidence, said fact is deemed original evidence and not hearsay evidence (see Supreme Court Decision 2012Do2937, Jul. 26, 2012

In a case where a document recording a statement is used as direct evidence of a crime, the document is considered hearsay evidence; however, it is not always considered hearsay evidence when it is used as circumstantial evidence for an indirect fact unrelated to the authenticity of the statement (see, e.g., Supreme Court Decision 2012Do16001, Jun. 13, 2013). However, in a case where the admissibility of a document recording a statement is recognized on the grounds that it would be used as circumstantial evidence of the fact that the statement was made itself, and where it again is used as an indirect fact proving the contents of the statement or its authenticity, the document constitutes hearsay evidence. This is because the document is used to substantiate a fact comprising the original statement written therein, and becomes a fact requiring proof. In such a case, said document is inadmissible unless it satisfies the requirements prescribed in Articles 311 through 316 of the Criminal Procedure Act.

B) The lower court determined as follows.

Defendant 2’s business pocket book, etc. as to the contents of Defendant 2’s remarks made by the 18th President Park Jong-Hy (hereinafter “former President”) to Defendant 2 (hereinafter “part of the conversation made between the former president and an individual interviewee”) and the former president’s conversation made between the former president and the individual interviewee, which read that the former president left Defendant 2 after his private interview (hereinafter “part of the conversation”).

First, if Defendant 2’s statement intends to prove the fact that the former president instructed to Defendant 2, the existence of the original statement itself constitutes a fact requiring proof, and thus, it does not constitute original evidence and hearsay evidence. In addition, if it is proven that the part of the order in Defendant 2’s work pocket book is genuine by the statement of Defendant 2, who is the originator thereof, at a preparatory hearing or during a public trial, it can be used as evidence of statement.

Second, in a case where the part on the conversation between Defendant 2 and an individual visitor is a statement to prove the contents of conversation, it is admissible as evidence only when the person making the original statement is unable to make a statement due to death, illness, foreign residence, unknown whereabouts, or any other similar cause pursuant to Article 316(2) of the Criminal Procedure Act, and when it is proved that the said statement was made under particularly reliable circumstances. In this case, Defendant 2’s business pocket book, etc. does not satisfy this requirement. Accordingly, Defendant 2’s business pocket book, etc. is not allowed to be used as evidence of indirect facts that can conceal the contents of conversation divided between the former president and the individual visitor. This is because permission would result in using the contents that cannot be used as direct evidence to prove the contents of conversation as evidence to prove the contents of conversation.

C) Examining the reasoning of the lower judgment in light of the aforementioned legal doctrine and evidence duly admitted, the lower court did not err in its judgment by misapprehending the legal doctrine regarding hearsay rules, etc., as otherwise alleged in the grounds of appeal by Defendant 1, special prosecutor, and prosecutor. The Supreme Court precedents cited by the special prosecutor as the grounds of appeal differ from this case

2) Whether it falls under Article 315 subparag. 3 of the Criminal Procedure Act

Article 315 subparag. 2 of the Criminal Procedure Act recognizes admissibility of evidence as a matter of course, on the grounds that documents containing continuous and mechanical records from time to time to time are existing to prove criminal facts, such as trade books, logbooks, medical treatment days, or money withdrawal and payment, etc., and that there is no need to cross-examine or to summon the author in light of the nature of the documents. Article 315 subparag. 3 of the Criminal Procedure Act provides that “documents prepared under other circumstances which have special credibility” are naturally admissible as evidence. Article 315 subparag. 1 and 2 of the Criminal Procedure Act provides that documents under Article 315 subparag. 1 and 2 of the said Act are the documents prescribed in subparag. 3 of the said Act as documents, regardless of whether to acknowledge criminal facts. Examining the regulatory structure and legislative intent of the hearsay rule and Article 315 of the Criminal Procedure Act together with the form of the provision of Article 315 subparag. 2 of the said Act, the said documents may not be proven by the Supreme Court en banc Decision 2016 subparag. 215, supra. 2015 of the documents.

Defendant 2’s business pocket book is merely a document in which Defendant 2 entered the facts of his experience for the convenience of business affairs. This is difficult to view it as “documents with high level of circumstantial guarantee of credit standing to the extent that the granting of opportunity for cross-examination is not an issue.” Thus, it does not constitute “other documents prepared under circumstances which would give special credit” as prescribed by Article 315 subparag. 3 of the Criminal Procedure Act. Defendant 2’s business pocket book constitutes a document prescribed by Article 315 subparag. 3 of the Criminal Procedure Act, and thus, is admissible, the special prosecutor’s assertion that it is admissible is without merit.

2. Violation of the Specific Crimes Aggravated Punishment Act (Bribery);

A. Violation of the Specific Crimes Aggravated Punishment Act (Bribery) regarding the support of Nonindicted 1’s horse riding

1) Defendant 1’s ground of appeal

A) Whether a public official and a non-public official (hereinafter “non-public official”) can become joint principal offenders of the crime of acceptance of bribe and the scope thereof

In a case where a person without a personal relationship processes a crime that may arise in the course of a personal relationship, the person having a personal relationship and his/her accomplices are established (see the main sentence of Article 33 of the Criminal Act). In such a case, if the subjective and objective requirements, such as the intent to jointly process a crime and the commission of a crime through functional control based on such intent, are satisfied, joint principal offenders shall be punished (see, e.g., Supreme Court Decision 201Do3180, Jul. 14, 201). The intent to jointly process is to jointly commit a specific crime with another person’s intent to commit a specific crime, and to transfer his/her intent to execute a crime by using another person’s act (see, e.g., Supreme Court Decisions 2001Do4792, Nov. 9, 2001; 2008Do1274, Apr. 10, 2008).

In a case where a public official, separate from the crime of acceptance of bribe under Articles 130 and 129(1) of the Criminal Act, separately from the case of the crime of acceptance of bribe, has a bribeer offered a bribe to a third party in connection with his/her duties, the criminal punishment for the crime of acceptance of bribe and the statutory punishment for the crime of acceptance of bribe are the same as that for the crime of acceptance of bribe against a third party. In a third party’s crime of acceptance of bribe does not require a third party to recognize the bribe (see, e.g., Supreme Court Decision 2004Do3424, Jun. 15, 2006). However, in a case where a public official had a bribeer give a bribe to a public official who is in a joint principal relationship with a public official and a non-public official who is in a joint principal relationship with the public official, the public official can not be deemed a third party referred to in the crime of acceptance of bribe against a third party (see, e.g., Supreme Court Decision 2016Do19659).

In a case where an explicit or implicit public offering relationship between the accomplices of the crime of acceptance of bribe and one of the accomplices provided money and benefits in relation to his/her duties, barring any special circumstance, barring any special circumstance, the joint principal offender of the crime of acceptance of bribe is established as to the whole of the money and valuables or benefits, and there is a mutual communication among the accomplices with regard to the size and degree of the money and valuables or benefits, or a joint principal offender is not established (see, e.g., Supreme Court Decision 2014Do10199, Dec. 24, 2014).

After the establishment of a joint principal offender of the crime of acceptance of bribe with respect to all money and other valuables and profits, the existence of a bribe belongs to either a public official, or a non-public official, who is a joint principal offender, does not affect the already established crime of acceptance of bribe. Even if a public official or a non-public official knew to vest a bribe in advance to a non-public official, or used or consumed a bribe due to its nature, such circumstance is merely a matter concerning the handling of a bribe

The lower court determined that the former president who is a public official and Defendant 1, who is a non-public official, could constitute joint principal offenders of the crime of acceptance of bribe even if the bribe related to Nonindicted 1’s horse riding support was reverted to Defendant 1, a non-public official.

Examining the reasoning of the lower judgment in light of the aforementioned legal doctrine and evidence duly admitted, the lower court did not err in its judgment by misapprehending the legal doctrine on the crime of acceptance of bribe under Article 129 (1) of the Criminal Act, the crime of acceptance of bribe under Article 130 of the Criminal Act, the crime of bribery to a

B) Whether there exists a conspiracy between Defendant 1 and the former president

The lower court acknowledged Defendant 1 and the former president’s conspiracy relation and Defendant 1’s functional control over Defendant 1’s functional act. For that reason, the former president demanded Nonindicted 2 to accept a bribe called a riding support for Nonindicted 1, and Defendant 1 went to the effect that Defendant 1 and the former president’s intent was transferred, by driving, blocking, and promoting the core progress leading to the crime of acceptance of bribe through riding support.

Examining the reasoning of the lower judgment in light of the evidence duly admitted, the lower court did not err in its judgment by misapprehending the legal doctrine regarding conspiracy and functional control over joint principal offenders, or by exceeding the bounds of the principle of free evaluation of evidence in violation of logical and empirical rules.

C) Whether the horses constitute a bribe

(1) In the crime of bribery, the benefit which is the substance of a bribe includes money, goods, and other property interests, and any tangible and intangible benefit sufficient to satisfy the desire of people (see, e.g., Supreme Court Decisions 78Do1793, Oct. 10, 1979; 2013Do13937, Jan. 29, 2014). The term “taking and receiving” as stated in the crime of acceptance of bribe means acquiring a bribe. Here, the term “taking and receiving” means acquiring the de facto right to dispose of the bribe, i.e., acquiring the de facto right to dispose of the bribe, and does not require the legal ownership of the bribe. Even if the bribe does not meet the requirements for acquiring legal ownership, if the bribe takes possession of the thing offered as a bribe and is not required by the bribe or the legal owner to return the thing itself, the right to use and dispose of the thing should be deemed to have been received as a bribe (see, e.g., Supreme Court Decision 2006Do73575, Apr. 27, 2006).

In a case where a bribe trustee acquired the authority to actually use and dispose of the goods in an internal relationship with the bribeer, but conceals the fact of acceptance of a bribe or reserves the formal requirements of transfer of ownership in order to continuously bear expenses for the goods, the said goods shall be deemed to have been received as a bribe inasmuch as the ownership is not different from the transfer of ownership between the bribeer and the bribeer. Since the goods received by the bribeer are not returned to the bribeer, the intent to obtain the said goods is also recognized.

(2) On November 15, 2015, the lower court determined that Defendant 1 received the horses themselves from Nonindicted 2, etc. as a bribe, on the grounds that there was a mutual agreement between Defendant 1 and Nonindicted 3 on the actual right to use and dispose of Salcido and the horses to be purchased in the future, and that Defendant 1 received the horses themselves from Nonindicted 2, etc., as in the first instance trial.

(3) Examining the reasoning of the lower judgment in light of the evidence duly admitted, the lower court did not err in its judgment by misapprehending the legal doctrine regarding the acceptance of bribe or by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules. The reasons are as follows

(A) In order to clarify the ownership of the horse in Nonindicted Co. 6 (hereinafter “Nonindicted Co. 6”) after Nonindicted Co. 4 entered with Nonindicted Co. 5 in the course of purchasing Salcido, Nonindicted Co. 5 demanded Nonindicted Co. 5 to write down an entrusted management contract through Nonindicted Co. 5 in order to make sure that the horse ownership belongs to Nonindicted Co. 6. Nonindicted Co. 5’s horse ownership. After that, Nonindicted Co. 4 demanded Nonindicted Co. 5 to write down the horse-type management contract. Defendant 1 sent Nonindicted Co. 5’s horse-type messages to Nonindicted Co. 5, Nonindicted Co. 5, Nonindicted Co. 5, Nonindicted Co. 5, Nonindicted Co. 5, Nonindicted Co. 5, Nonindicted Co. 5, Nonindicted Co. 1, Nonindicted Co. 5, Nonindicted Co. 5, following this demand, and Nonindicted Co. 5, Nonindicted Co. 5, Nonindicted Co. 5, who received such demand, sent the message to Nonindicted Co. 6’s owner, Nonindicted Co. 3 and Nonindicted Co. 4.

In light of the above circumstances, even if the entry of the name of the horse in the horse box between Defendant 1 and Nonindicted 4 is not legally legal, it may be deemed that the horse was recognized by the method of expressing the ownership of the horse in the horse race track. Moreover, Defendant 1 is aware that Nonindicted 6 had already decided that the former president and Nonindicted 2 would buy the horse to Defendant 1, and that Nonindicted 4 had demanded the form of lending the horse ownership to Nonindicted Company 6 and Defendant 1. In other words, Defendant 1 had seen this attitude because he wanted the horse ownership. In light of the words of Nonindicted 3’s speech and behavior, it should be deemed that Nonindicted 3 had known that Defendant 1 wanted the horse ownership.

In a private meeting on September 15, 2014, the former president requested Nonindicted 2 to “the Chairperson of the Korea Racing Association to leave Nonindicted Company 6 to Nonindicted Company 6, and to actively support Nonindicted 2, such as the withdrawal of a good horse so that promising owners of horse can participate in the Olympic Games.” On July 25, 2015, the former president stated that “ Nonindicted 6 Company was aware of the fact that Nonindicted 3, who was in charge of supporting Nonindicted 1’s horse riding in accordance with the comprehensive direction of Nonindicted 2, should have known Nonindicted 1’s intention to acquire ownership after the private meeting,” and that “The former president sent out a horse-riding promising owner’s off-the-day off training and good horse is known to Nonindicted 6 Company 6’s walk.” The former president, at each time, told Nonindicted 2 that Nonindicted 3, who was in charge of supporting Nonindicted 1, should have known Nonindicted 1 of his intention to acquire ownership of the horse.”

Therefore, Nonindicted 3 did not assert the ownership of the horse against Defendant 1, and recognized that the actual right to use and dispose of the horses was against Defendant 1, and expressed that Defendant 1 would receive the measures that Defendant 1 wants in detail as decided by Defendant 1, and that there was an agreement with Defendant 1.

(B) Although the demand of Defendant 1, which Nonindicted 5 transferred to Nonindicted 4 on November 17, 2015, includes the issue of horse owner registration, it does not explicitly indicate that Defendant 1 wishes to own horse ownership. However, in the first instance trial of the instant case (hereinafter “related case”), regarding the said demand, Nonindicted 5 stated that Defendant 1’s offering of bribe, etc. to Nonindicted 2 was obviously due to the ownership of horse, and that Defendant 1’s offering of a bribe, etc. to Nonindicted 2, was in fact due to the ownership of horse, and that it would be difficult to use an expression that “whether it would have been what he would have caused the horse to die” while sending documents to Nonindicted 6’s side, and that it would be same as above.

As seen above, Defendant 1 sent a picture to Nonindicted Co. 6 because he wanted to own the horse, and Nonindicted Co. 3 knew that he wanted to do so on November 15, 2015, and clearly delivered that he wanted to do so. As such, Defendant 1 has already obtained an answer that he wanted from Nonindicted Co. 3. Therefore, Defendant 1 does not directly need to send the said demand to Nonindicted Co. 3 and Nonindicted Co. 4, who wants to own the horse ownership again. Rather, the said demand is deemed to have been delivered to Nonindicted Co. 6 in full completion of the specific requirements on the premise of the agreed terms on November 15, 2015. Defendant 1 was sufficient to verify that he had ownership of horse in relation to Nonindicted Co. 6, and Nonindicted Co. 6, while receiving horse support from Nonindicted Co. 6, it was also necessary to prepare the process of preparing the above demand for entrusted management, such as responding to infringement on ownership, the cost of maintaining the ownership, and taking measures necessary to avoid the press tracking.

(C) On February 4, 2016, Non-Indicted 3, etc. purchased Vitana and Rausing, unlike the case of Salcido, deleted the part of the plaque and owner from the internal draft of Non-Indicted 6 company, and entered the horses as tangible assets in the asset management ledger, and entered the purchase cost in advance only in the account settlement. These measures taken within Non-Indicted 6 company that cannot be involved by Defendant 1. It shows that Non-Indicted 3 and Non-Indicted 6, etc., perceived that they could not claim the horse ownership at the time of purchase of Rausing and Rausing from Non-Indicted 6 company’s side, including Non-Indicted 3, did not state Non-Indicted 6 company’s non-indicted 6 company, and maintained the status of the former marina name.

(D) When suspicions as to the horse riding support against Nonindicted 1 were raised, and media coverage was conducted, Nonindicted 3, etc. pretended that Nonindicted Company 6 sold Salcido, i.e., the sum of the purchase price for Salcido, i.e., to △△△△△△ (hereinafter “△△△△△△△”) on August 22, 2016. Nonindicted 3 and Nonindicted 4 discussed a way to settle the value of the horse back to △△△△△△△△△△△△ by concealing the fact of offering a bribe in Germany on September 28, 2016. According to that, Nonindicted Company 6 would be deemed to have disposed of the horse and purchased Nonindicted Company 6’s horse, and Nonindicted 2 and Nonindicted 4 would have concealed the fact that Nonindicted 3 and Nonindicted 4 offered the horse to Defendant 1.

On September 30, 2016, Defendant 1 entered into a contract with △△△△△ and Dona 6.7 million U.S. dollars in the name of Nonindicted Company 7, and entered into an exchange with Dona Dona Dona Dona Dona, and Lone Star Do. Nonindicted 3, replacing Defendant 1 with the same class, opposed to the replacement of Doran Dona Dona Dona Dona on the ground that the participation in the competition would be subject to tracking and tracking, but Defendant 1 transferred to Defendant 1 the intention to replace Dona Dona Dona Dona Dona Dona. After which, on October 19, 2016, Nonindicted 3 and Nonindicted 4 changed Defendant 1’s Dona Dona Dona Dona on the premise that Defendant 1 had the authority to conceal or support Dona Dona Dona with Defendant 1, etc., and that Defendant 1 had the authority to dispose of the remaining Dona 1.

(E) In short, Nonindicted 2 provided horse riding support to Nonindicted 1 in order to provide a bribe in relation to his duties when conducting a private interview with the former president. At the two single interviews, Nonindicted 2 received a demand from the former president to provide a bribe in relation to the former president. Nonindicted 2, etc., who provided a bribe to Defendant 1 upon the demand of the former president, was actively and promptly provided a horse riding support after receiving a demand from the former president to return at the second single interviews. The specific details of the support in the process were as determined by Defendant 1. Nonindicted 2, etc., who provided a bribe to Defendant 1 upon the demand of the former president, had an important interest in providing a bribe to ensure that Defendant 1 can be satisfied as much as possible, and not to disclose the fact. Against this backdrop, Nonindicted 1’s horse and Nonindicted 2, etc., who provided money requested by Defendant 1 to Defendant 1, expressed that he would have ownership of the horse from Defendant 1, and thus, there was no need to return the right to use and dispose of the horses between both parties.

All the measures following the aforementioned agreement were taken on the basis of the foregoing agreement. The possession of the horses purchased by Nonindicted 2, etc. with the funds of Nonindicted Company 6 was transferred to Defendant 1, and Defendant 1 continued to use the horses as desired by Defendant 1. After November 15, 2015, Defendant 1 did not need to return the horses to Nonindicted Company 6, and Defendant 1 did not need to compensate for losses to Nonindicted Company 6 even if the horses were dead or injured due to Defendant 1’s arbitrary disposal of the horses or mistake. In such a case, the bribe offered by Nonindicted 2, etc. to Defendant 1 ought to be deemed as the horses. Considering that the offering of the horses was merely an unused amount of profits from use of the horses is contrary to logical and empirical rules and is contrary to general rules.

D) Whether the crime of promising acceptance of bribe is established in the amount

The lower court determined that, on August 26, 2015, the service contract between Nonindicted Company 6 and Nonindicted Company 7 (hereinafter “instant service contract”) entered into between Defendant 1 and Nonindicted Company 2, etc., there was a conclusive agreement between Defendant 1 and Nonindicted 2, etc. that they would give and receive an unregistered amount of bribe for the purpose of supporting the riding of Nonindicted 1, at least until the Aanananan games, 2018 originally agreed.

Examining the reasoning of the lower judgment in light of the evidence duly admitted, the lower court did not err by misapprehending the legal doctrine regarding the crime of promising to accept bribe, or by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules.

2) The special prosecutor’s ground of appeal

A) The lower court determined as follows.

It cannot be deemed that there was an agreement between Defendant 1 and Nonindicted 2, etc. to receive KRW 21.3 billion as a bribe on the sole basis of the fact that the service price was written as KRW 21.3 billion under the instant service contract, which was merely an act. Even according to the service contract, it cannot be readily concluded that the intent to receive KRW 21.3 billion as a bribe was finally agreed between Defendant 1, the former president, and Nonindicted 2, etc.

There is no evidence to deem that the insurance benefit under the insurance contract regarding the horses was transferred from Nonindicted Company 6 to Defendant 1. In the event of an insured incident, if the insurance proceeds are paid to Nonindicted Company 6, and Nonindicted 3 and Nonindicted 4, etc. deliver the insurance proceeds to Defendant 1, or purchase and provide the horses with the insurance proceeds, a new crime of acceptance of bribe is established at that stage. In light of these circumstances, it is difficult to readily conclude that Defendant 1 received the amount equivalent to the insurance proceeds for the horses from

In light of the fact that Nonindicted Company 6 and Nonindicted Company 7 prepared a written confirmation that ownership of three vehicles for athletes and one vehicle for horse transport, which were purchased and used by Nonindicted Company 7 at Nonindicted Company 6’s expense, was in possession of Nonindicted Company 6, and that Nonindicted Company 6 listed the said vehicles as tangible assets in the asset management ledger, it is difficult to recognize that Defendant 1 received the said vehicles themselves or the purchase price thereof as a bribe.

B) Examining the reasoning of the lower judgment in light of the relevant legal doctrine and the evidence duly admitted, the lower court did not err in its judgment by misapprehending the legal doctrine regarding the crime of promising acceptance of bribe, the crime of acceptance of bribe, the crime of acceptance of bribe, and the willful negligence, etc., failing to exhaust all necessary deliberations, or exceeding the bounds of

B. Violation of the Specific Crimes Aggravated Punishment Act (Bribery) concerning Nonindicted Corporation 8 (hereinafter “Nonindicted Corporation 8”)

1) The constituent elements of the crime of bribery against a third party under Article 130 of the Criminal Act are the act of having a public official or an arbitrator give a bribe to a third party in exchange for an unlawful solicitation in connection with his/her duties. Here, the term “Bribery” refers to the unlawful and unjust profit given to a third party by means of an unlawful solicitation in connection with a public official’s duties, and the crime of bribery against a third party is recognized as having relevance to duties like the crime of bribery (see Supreme Court Decisions 2004Do3424, Jun. 15, 2006; 2004Do4959, Nov. 16, 2007, etc.).

The term “illegal solicitation” includes not only cases where a solicitation contains unlawful or unreasonable performance of duties, but also cases where the performance of duties subject to solicitation is to be delivered consideration in connection with a performance of duties, even if the performance of duties does not constitute an unlawful or unjust performance of duties. It does not need to specifically specify the details of an act of performance of duties subject to solicitation. The details of an illegal solicitation are sufficient to specify the details of a quid pro quo relationship between a public official’s official’s duties and the profits provided to a third party to the extent that it can be recognized, but also the pending issues that have already occurred and are anticipated to occur in the future may be the contents of an illegal solicitation if they are specified to the extent above. The illegal solicitation may be made by an implied declaration of intent where there is a common perception or understanding between the parties on the contents of the performance of duties subject to solicitation and the fact that money and valuables provided to a third party are a quid pro quo for the performance of duties (see Supreme Court Decisions 2011Do7503, Sep. 8, 2011; 2016Do3627.

In determining whether a third party constitutes a bribe in relation to his/her duties or an illegal solicitation was made, the standard is whether the number of benefits is suspected of being fair in the performance of duties from the general public in light of the legal interests and interests protected by the bribery Act, which is called a fair performance of duties, fairness in the performance of duties, trust in society and in the performance of duties (see, e.g., Supreme Court Decision 2004Do1632, Jan. 26, 2007).

2) For the following reasons, the lower court convicted Defendant 1 of this part of the facts charged on the ground that there was a quid pro quo relationship between Nonindicted 2’s implied solicitation of succession work and Nonindicted 8’s subsidies.

A) The management succession refers to the restructuring of △△ Group’s governance structure with the aim of enabling Nonindicted 2 to secure to the greatest extent voting rights that can be actually exercised against Nonindicted Company 6 and Nonindicted Company 9 (hereinafter “Nonindicted Company 9”). This aims at strengthening Nonindicted 2’s control over major affiliate companies of △△ Group in a quantitative and qualitative manner at minimum costs. This is not a fixed change due to its nature, but a specific content is bound to be flexible depending on changes in the economic, social, institutional, and political environment. The content of individual corporate restructuring that constitutes the management succession is not necessary to be specifically specified at the time of solicitation, and when the management succession process is specified to the extent that it can be recognized as a quid pro quo relationship between the former president’s duties and the profits provided to Nonindicted Corporation 8.

B) Nonindicted 2, who succeeded to the management right of △△ Group, need to strengthen to the maximum extent possible control over major affiliate companies of △△ Group, and accordingly has been proceeding with the reorganization of corporate structure. In light of such circumstances, the succession process may be recognized in relation to Nonindicted 10 Company (hereinafter “Nonindicted 10 Company”) and Nonindicted 11 Company (hereinafter “Nonindicted 11 Company”)’s listing of securities markets, mergers between Nonindicted 12 Company (hereinafter “Nonindicted 12 Company”) and Nonindicted 11 Company (hereinafter “Nonindicted 12 Company”), enhancement of defense against management right against foreign capital, mitigation of disposal of stocks of Nonindicted 12 Company to resolve the new circular equity investment following the instant merger, and the implementation of the Financial Services Commission’s approval on the plan to convert the financial holding company of Nonindicted 9 Company into a financial holding company.

C) At the time of the private meeting on July 25, 2015, the former president and Nonindicted 2 had formed common perception and understanding on the friendly position of the former president concerning the pending issue of Nonindicted 2’s succession. In the private meeting, the former president requested Nonindicted 2 to assist Nonindicted 8. There was a common perception or understanding as to the former president’s performance of duties for Nonindicted 2’s succession and Nonindicted 2’s support for Nonindicted 8’s performance of duties. There was a common perception or understanding as to the fact that between the former president and Nonindicted 2 was a quid pro quo for Nonindicted 2’s succession.

D) The former president has a position and authority to affect the succession of management rights to a specific large enterprise group. The solicitation to the effect that the former president’s authority is used to assist the succession of management rights to a certain large enterprise group is in itself in violation of social rules and the principle of good faith. There is no personal relationship between the former president and Nonindicted 2, requesting and receiving support to a specific organization that is Nonindicted 8. The former president demanded that Nonindicted 2 provide support to Nonindicted 8 in a single meeting place, and specifically demanded that Nonindicted 1 specifically specify the subject of support, size, and method of support at Defendant 1’s request. Even though Nonindicted 2, etc. was aware of the fact that Nonindicted 8 was not a normal public organization, it provided support according to the content of the request without any specific review. From October 2015 to March 2016, support was carried out in the process of the instant merger, the resolution of the instant merger, the strengthening of management rights to foreign capital, and defense against pending pending issues, etc.

E) It is sufficient for △△ Group, the largest business group in Korea, to support Nonindicted Corporation 8, which is not a normal public organization, at the request of the former president, with a large amount of money, in itself, creating doubts as to the fairness of the former president’s execution of duties.

F) Defendant 1 knew of the authority and status of the president, and the approximate contents of conversation conducted in the private interview between the former president and the total number of large enterprises, and identified in advance the schedule of the private interview between the former president and Nonindicted 2, and requested the former president to request Nonindicted 8 to provide support to Nonindicted 2 by delivering documents related to Nonindicted Corporation 8 to the former president. According to such circumstances, Defendant 1 and the former president is recognized as a public contest relationship between Defendant 1 and the former president.

3) According to the facts acknowledged by the lower court, it can be found that, at the minimum cost, Nonindicted Company 6 and Nonindicted Company 9, which are the major affiliate companies of △△ Group, have been systematically succeeded from the future strategic office centered on the future strategic office. Since the management succession work, which has a clear purpose and character, may have an impact on the president’s inherent authority, such succession work is specified to the extent that it can recognize a quid pro quo relationship between the former president’s duties and the profits provided, and may constitute the contents of illegal solicitation.

As long as a quid pro quo relationship can be recognized by the succession itself, it is not necessary to specify specific pending issues and a quid pro quo relationship as part of the succession work, and such pending issues are not required to have already occurred at the time of solicitation.

Therefore, examining the reasoning of the lower judgment in light of the aforementioned legal doctrine and the evidence duly admitted, the lower court did not err in its judgment by misapprehending the legal doctrine regarding illegal solicitation as stated in the crime of bribery to a third party or by exceeding the bounds of the principle of free evaluation of evidence in violation of logical and empirical rules

C. Violation of the Specific Crimes Aggravated Punishment Act (Bribery) regarding Nonindicted Incorporated Foundation 13, Nonindicted Incorporated Foundation 14 (hereinafter “Nonindicted Foundation 13,” respectively, “Nonindicted Foundation 14,” and “Nonindicted Foundation 14,” collectively referred to as “each of the instant foundations”)

1) The lower court acquitted Defendant 1 of this part of the charges on the following grounds.

승계작업에 관한 공소외 2의 묵시적 청탁과 이 사건 각 재단 출연금 사이에 대가관계가 존재한다고 단정하기 어렵다. 청와대는 이 사건 각 재단에 대한 전체 출연 규모, 공소외 13 재단에 대한 출연금의 증액 여부, 출연 기업의 범위와 재단 설립 일정 등을 정하여 ◁◁◁◁◁◁◁◁(이하 ‘◁◁◁’이라 한다)에 전달하였고, ◁◁◁은 이를 기초로 후원금을 모으는 일반적인 방법으로 기업들의 출연금액을 정해 주었다. 따라서 ◇◇그룹에 대해서만 어떤 대가관계가 있다거나 전 대통령이 유독 공소외 2에게만 승계작업이라는 현안에 대한 대가관계를 인식하고 요청하였다고 보기 어렵다.

It is insufficient to readily conclude that the former president and Nonindicted 2 had a single interview on September 12, 2014, and it is difficult to view that the relationship between the former president and Nonindicted 2 with respect to the illegal solicitation and a quid pro quo with respect to other pending issues claimed by the special prosecutor is both recognized.

Each of the instant foundations constitutes a third party in the crime of bribery against a third party. It cannot be deemed that Nonindicted 2, etc. paid contributions from each of the instant foundations on behalf of Defendant 1 and the former president, and it cannot be deemed that Defendant 1 and the former president directly received contributions from each of the instant foundations.

2) Examining the reasoning of the lower judgment in light of the relevant legal doctrine and the evidence duly admitted, the lower court did not err in its judgment by misapprehending the legal doctrine regarding the elements for the establishment of the crime of bribery to a third party, recognition of the bribe payer and the liability of the bribe payer, the act of contribution to an incorporated foundation, etc., omitting judgment, failing to exhaust all necessary deliberations, or exceeding the bounds of the principle of free evaluation of evidence

D. Violation of the Specific Crimes Aggravated Punishment Act (Bribery) regarding △△ Group

1) For the following reasons, the lower court determined that there was an illegal solicitation between the former president and co-defendant 3 of the first instance court, and that there was a conspiracy and functional control over Defendant 1’s crime in this part and functional control.

In light of the nature and timing of a private meeting, the importance of the pending issue of △△△△ Group, the former president’s “data at △△ Group” and the content of the “stamping data” of co-defendant 3 of the first instance trial, it can be deemed that there was a dialogue between the former president and co-defendant 3 of the first instance trial on duty-free shops.

The former president and co-defendant 3 of the first instance court had a common perception on the pending issue of re-acquisition of the license for the △△△△ duty-free shop, which is the core issue of △△ Group. The △△ Group’s side was required to proceed with the procedures for new license for the duty-free shop in Seoul Si to the extent that it does not significantly delay the schedule or any longer set forth in the internal policy of Cheongdaedae, etc. due to the employment problems of the △△△△ duty-free shop, continuity of business, and the listing procedures for Nonindicted Co. 15. The former president, etc. was aware of such circumstances. Accordingly, it is recognized that there was an implied solicitation between the former president and co-defendant 3 of the first instance court on the “exclusive promotion of the new patent method and the re-acquisition of the license for the duty-free shop.”

In a private meeting, the former president demanded co-defendant 3 of the first instance trial to provide additional support to Nonindicted Foundation 14 in return for the performance of duties with respect to the solicitation of Co-defendant 3 of the first instance trial. Co-defendant 3 of the first instance trial and the △△ Group recognized the demand of the former president is a consideration for the performance of duties, and provided additional KRW 7 billion to Nonindicted Foundation 14 and paid KRW 7 billion to Nonindicted Foundation 14.

Defendant 1 delivered a draft related business plan to the former president. Defendant 1 had dolusent recognition of the fact that co-defendant 3 of the first instance trial and the request for additional support to Nonindicted Foundation 14 was in a quid pro quo relationship with the former president’s performance of duties. As such, Defendant 1 and the former president are also admitted to the conspiracy relation with the crime of bribery to a third party.

2) Examining the reasoning of the lower judgment in light of the aforementioned legal doctrine and the evidence duly admitted, the lower court did not err in its judgment by misapprehending the legal doctrine regarding the requirements for establishment of the crime of bribery to a third party or by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, contrary to what is alleged in

E. Violation of the Specific Crimes Aggravated Punishment Act (Bribery) regarding △△ Group

1) For the following reasons, the lower court determined that Nonindicted 16 made an illegal solicitation to the former president, that the former president and Defendant 1, etc. were recognized, and that Defendant 1’s collusion and functional control over the act was also involved.

In a private meeting, Nonindicted 16 made Nonindicted 17’s remarks on Nonindicted 17’s parole, 20 duty-free shop, and Nonindicted Company 18’s acquisition and merger with Nonindicted Company 19, respectively. This constitutes an express solicitation to the effect that “Nonindicted 17 may be released early before the expiration of the term of punishment,” “a prompt progress of the procedures for issuing a new license for duty-free shop” and “a rapid change in the conclusion regarding the application for approval of the combination of enterprises.”

In response to Nonindicted 16’s request, the former president demanded the support of Nonindicted Foundation 14 and the virtual 16 in return for the execution of his duties, thereby making an illegal solicitation. There was a perception that there was a quid pro quo between the former president and the former president’s demand and the former president’s demand. There was a quid pro quo relationship between the former president’s demand and the pending issues of the △ Group. It is difficult to view that the former president’s demand for the support of the virtual 20 Co., Ltd. (hereinafter “Nonindicted 20”) planned and undertaken by Nonindicted 16, a company that was established and operated by Defendant 1 (hereinafter “Nonindicted 16”), was a purely significant cooperation.

Defendant 1 was aware that the former president had a private interview with Nonindicted 16 on February 16, 2016, and delivered a plan, such as a contract for the Galer Research Service to △ Group through the former president and Defendant 2, and was aware of the fact that Nonindicted 16 and the request for the support of Nonindicted 14 foundation and the Galer Program to △△ Group was in a quid pro quo relationship with the former president’s performance of duties. Accordingly, there was a collusion between Defendant 1 and the former president with regard to the crime of the third-party brain demand in this part.

The former president, via Defendant 2, delivered documents, such as Nonindicted Company 20’s research service proposal, to △ Group, and subsequently Nonindicted 21 and Nonindicted 22 of the Foundation 14 demanded Nonindicted 22 to provide the persons related to △ Group with support of KRW 8.9 billion. Thus, the crime of demanding a bribe immediately is established.

2) Examining the reasoning of the lower judgment in light of the aforementioned legal doctrine and the evidence duly admitted, the lower court did not err in its judgment by misapprehending the legal doctrine regarding the elements for establishment, such as illegal solicitation and demand, etc., and the public relation, etc., as alleged in Defendant 1’s grounds of appeal, or by exceeding the bounds of the principle of free evaluation

F. Violation of the Specific Crimes Aggravated Punishment Act (Bribery) with respect to Nonindicted 23 and Nonindicted 24

1) Defendant 2’s ground of appeal

The lower court determined as follows. Defendant 2 received KRW 5 million from Nonindicted 23, Nonindicted 24, in return for the performance of duties as the senior secretary of economic affairs, on or around August 21, 2014, from Nonindicted 23, and Nonindicted 24 couples, for a woman Scarf 1, the market price of which is equivalent to one million won at the market price, around August 30, 2014, KRW 1,000,000,000,000,000,000,000,000,000,000,000,0000,000,000,000,000,000,0000,000,000,000,000)

The allegation in the grounds of appeal disputing such determination by the lower court is practically disputing the lower court’s determination on the selection of evidence and probative value, which belong to the free judgment of the fact-finding court. Even when examining the reasoning of the lower judgment in light of relevant legal principles and evidence duly admitted, the lower court did not err in its judgment by misapprehending the legal doctrine regarding the consideration of the crime of acceptance of bribe and the value of the bribe, or by exceeding

2) The special prosecutor’s ground of appeal

The lower court reversed the first instance judgment convicting Defendant 2 on the ground that there is insufficient evidence of crime on the part of KRW 15 million in total received immediately before the order, KRW 3 million in cash received on August 11, 2015, and KRW 5 million out of KRW 10 million in cash received as congratulatory money in the middle and middle of May 201, and Defendant 2’s accepted money does not exceed KRW 30 million as stipulated in Article 2(1)3 of the Specific Crimes Aggravated Punishment Act.

The allegation in the grounds of appeal disputing such determination by the lower court is practically disputing the lower court’s determination on the selection of evidence and probative value, which belong to the free judgment of the fact-finding court. Even if examining the reasoning of the lower judgment in light of the relevant legal principles and evidence duly admitted, the lower court did not exhaust all necessary deliberations and did not err by exceeding the bounds of the principle of free evaluation of evidence

3. Violation of the Act on Regulation and Punishment of Criminal Proceeds Concealment (hereinafter “Regulation of Criminal Proceeds Concealment”).

A. Defendant 1’s ground of appeal

The lower court determined as follows. The instant service agreement is merely a means for Defendant 1 to receive a bribe from Nonindicted Company 6, and thus constitutes the act of pretending the origin of criminal proceeds as if the acceptance of bribe was lawful horse riding support. This also applies to the act of Nonindicted Company 6 to prepare internal parts in the course of providing money in the name of the service price using the instant service agreement as a bribe. The horses that Defendant 1 received from Nonindicted Company 2, etc. are criminal proceeds, and the horses that Defendant 1 received from Nonindicted Company 2, etc. are false, and the horse sales contract with Nonindicted Company 6, etc., which sells the horses to △△△△△△△△△△△△△, and the ark service agreement concluded between Nonindicted Company 6 and Nonindicted Company 6, which is concluded with Nonindicted Company 6, thereby

Examining the reasoning of the lower judgment in light of the relevant legal doctrine and evidence duly admitted, the lower court did not err in its judgment by misapprehending the legal doctrine regarding the act of pretending the origin of criminal proceeds and the act of pretending the fact regarding the disposal of criminal proceeds, or by exceeding the bounds of the principle of free evaluation of evidence in violation

B. The Prosecutor’s ground of appeal

The lower court determined that Defendant 1 was not the criminal proceeds generated from the crime of acceptance of bribe and the crime of embezzlement on the grounds that the purchase price of four vehicles, such as Nonindicted 2, etc. for the horse’s insurance premiums, three vehicles for the horse, one vehicle for the horse transport, etc. cannot be deemed as a bribe or the said insurance premium, etc. cannot be deemed as an object

Examining the reasoning of the lower judgment in light of the evidence duly admitted, the lower court did not err in its judgment by misapprehending the legal doctrine regarding the crime of acceptance of bribe, the crime of occupational embezzlement, and the Act on the Regulation of Concealment of Criminal Proceeds, or by exceeding the bounds of the principle of free evaluation of evidence

4. Abuse of authority

A. Demanding contributions, etc. from Do governor and large enterprises related to each of the instant foundations

1) The crime of abuse of authority is established when a public official actually and specifically commits an unlawful or unjust act in the form of exercising official authority in relation to matters falling under the general official authority. The term “violation of authority” refers to a public official’s exercise of authority in an unlawful or unjustifiable manner with respect to matters falling under the general official authority. It is distinguishable from a tort in which a public official commits an act that does not fall under the general official authority and authority (see, e.g., Supreme Court Decisions 2007Do9139, Apr. 10, 2008; 201Do5329, Nov. 28, 2013).

In order for a certain duty to be considered as belonging to the general duties and authority of a public official, there is a need for legal basis. Although there is no express provision, the legal basis is not always required, it is interpreted as belonging to the duties and authority of the relevant public official by comprehensively and practically examining statutes and institutions, and where it is deemed that the abuse is sufficient to cause the other party to perform an act that does not have any duty or to interfere with the rights thereof, it shall be included in the general duties and authority as stated in the crime of abuse of authority (see, e.g., Supreme Court Decisions 2004Do404, Nov. 12, 2004; 2011Do1739, Jul. 28, 2011). In order to constitute a crime of abuse of authority under Article 123 of the Criminal Act, the occurrence of such a result must be caused by the act of abuse of authority (see, e.g., Supreme Court Decisions 201Do4015, Apr. 25, 2005>

The co-principal under Article 30 of the Criminal Act is established by satisfying the subjective and objective requirements, namely, the commission of a crime through the intent of co-processing and the functional control of an act resulting therefrom. A person who did not directly share and implement an act of constituent elements among the competitors may also be held liable for the so-called crime of co-principal depending on whether the aforementioned requirements are met. In order for an accomplice who did not directly share and implement an act of constituent elements to be recognized as a co-principal, the functional control of the act through the intrinsic contribution to the crime should be recognized not only by the person who is merely the person who has committed the act of constituent elements but also by taking into account the position and performance of duties, control over the progress of the crime, and the past record of the crime. This legal doctrine likewise applies where a non-public official conspired with a public official and commits a crime of abusing authority (see, e.g., Supreme Court Decisions 2008Do6950, Jan. 30, 2009; 2008Do7312, Jan. 28, 201

2) The lower court determined that Defendant 1, as to this part of the crime, was a conspiracy between the former president and Defendant 2 and functional control over the crime. Examining the reasoning of the lower judgment in light of the aforementioned legal doctrine and evidence duly admitted, the lower court did not err in its judgment by misapprehending the legal doctrine regarding the intentional and ex officio act of abuse of authority, joint principal offender, etc., or by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules

In addition, the lower court determined that the person who committed an act that was not obligated due to the abuse of official authority in relation to the establishment and fund-raising of each of the instant foundations was each the person who decided to contribute each of the “subject of decision on contribution by group” in attached Tables 1 and 2 of the lower judgment among the executives and employees of Nonindicted 25, Nonindicted 26, Nonindicted 27, and Nonindicted 14 in relation to the establishment of Nonindicted Foundation 13 among the executives and employees of Nonindicted 25, Nonindicted 25, Nonindicted 26, and Nonindicted 26 in relation to the establishment of Nonindicted 14, and each of the executives and employees of each contributed group, and that the Do governor and other executives and employees of the said company did not constitute a person who committed an act that was not obligated due to the abuse of official authority. Examining the reasoning of the lower judgment in light

B. Demanding to enter into a supply contract and place an advertisement order against △△△ Group

The lower court determined that there existed Defendant 1 and the former president’s conspiracy and functional control over the crime of abusing official authority that demanded Nonindicted 28 to conclude a supply contract with Nonindicted Company 29 (hereinafter “Nonindicted Company 29”). Examining the reasoning of the lower judgment in light of the aforementioned legal doctrine and evidence duly admitted, the lower court did not err in its judgment by misapprehending the legal doctrine regarding the criminal intent of abuse of official capacity and joint principal offender, or by exceeding the bounds of the principle of free evaluation of evidence in violation of logical and empirical rules, contrary to what is alleged in the grounds of appeal by Defendant

In addition, the lower court determined that: (a) Nonindicted 30 did not constitute a person who committed an act for which Nonindicted 29 had no obligation due to the former president and Defendant 2’s abuse of authority; and (b) Defendant 2’s demand for advertising against Nonindicted 31 Company (hereinafter “Nonindicted 31 Company”) upon receipt of the former president’s order cannot be deemed an exercise of the authority of the president and the senior economic secretary. Examining the reasoning of the lower judgment in light of the aforementioned legal doctrine and evidence duly admitted, the lower court did not err by misapprehending the legal doctrine regarding the crime of abuse of authority, etc., or by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, contrary

C. Demanding the employment and change of assignment of office for Nonindicted Co. 32 (hereinafter “Nonindicted Co. 32”) and the selection of an advertising agency

The lower court determined that Defendant 2’s demand for the recruitment and change of assignment of Nonindicted 34 and Nonindicted 35 and for Nonindicted 33 to select Nonindicted Company 31’s advertising agency in compliance with the former president’s order cannot be deemed to have exercised the authority of the president and the senior economic secretary. Examining the reasoning of the lower judgment in light of the aforementioned legal doctrine and evidence duly admitted, the lower court did not err by misapprehending the legal doctrine regarding the crime of abuse of authority or by exceeding the bounds of the principle of free evaluation of evidence in violation of logical and empirical rules, contrary

D. Demanding additional support from △△ Group related to Nonindicted Foundation 14

The lower court determined that there existed a conspiracy and functional control over the former president and Defendant 1 with respect to the crime of abusing official capacity against Co-Defendant 3 in the first instance trial. Examining the reasoning of the lower judgment in light of the aforementioned legal doctrine and evidence duly admitted, the lower court did not err in its judgment by misapprehending the legal doctrine regarding the criminal intent of abusing official capacity and joint principal offense, or by exceeding the bounds of the principle of free evaluation of evidence in violation of logical and empirical rules,

In addition, the lower court determined that the circumstances alleged by the prosecutor are difficult to view that Defendant 2 participated in this part of the crime by functional control, and that Nonindicted 36 and Nonindicted 37 did not commit an act for which the former president was not obligated due to the abuse of official authority. Examining the reasoning of the lower judgment in light of the aforementioned legal doctrine and evidence duly admitted, the lower court did not err in its judgment by misapprehending the legal doctrine regarding the establishment of joint principal offenders and the crime of abusing official authority, or by exceeding the bounds of the principle of free evaluation of evidence

E. Demanding support from △△ Group to Nonindicted Corporation 8

The lower court determined that Defendant 1, the former president, and Nonindicted 38 recognized a conspiracy and functional control over the crime of abuse of authority against Nonindicted 2. Examining the reasoning of the lower judgment in light of the aforementioned legal doctrine and evidence duly admitted, the lower court did not err in its judgment by misapprehending the legal doctrine regarding the criminal intent and conspiracy of abuse of authority, or by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, contrary to what is alleged in the grounds of appeal by

In addition, the lower court determined that Nonindicted 39 and Nonindicted 40 did not constitute a person who was not obligated due to the former president’s abuse of authority. Examining the reasoning of the lower judgment in light of the aforementioned legal doctrine and evidence duly admitted, the lower court did not err in its judgment by misapprehending the legal doctrine regarding the crime of abuse of authority, etc., or by exceeding the bounds of the principle of free evaluation of evidence

F. Nonindicted Co. 41 (hereinafter “Nonindicted Co. 41”)’s demand for the establishment of a sports team, the conclusion of a service contract, and the support for Nonindicted Co. 8

The lower court determined that there existed collusion and functional control over the Defendants, the former president, and Nonindicted 42 regarding the part regarding the demand for the establishment of a sports team and the conclusion of a service contract. Examining the reasoning of the lower judgment in light of the aforementioned legal doctrine and evidence duly admitted, the lower court did not err in its judgment by misapprehending the legal doctrine regarding abuse of official capacity, joint principal offense, etc., or by exceeding the bounds of the principle of free evaluation of evidence in violation

In addition, the lower court determined that Defendant 1 conspiredd with Nonindicted 42 and Nonindicted 38 to commit the crime of abuse of authority and has functional control over the part regarding the demand for support for Nonindicted Corporation 8. Examining the reasoning of the lower judgment in light of the aforementioned legal doctrine and evidence duly admitted, the lower court did not err in its judgment by misapprehending the legal doctrine regarding the intent of the crime of abuse of authority and the joint principal offender, or by exceeding the bounds of the principle of free evaluation of evidence in violation of logical and empirical rules

(g) Demanding the creation of a sports team and the conclusion of a service contract against Do prospective △△ Group;

The lower court determined as follows. It was difficult to view that: (a) the creation of a sports team and the conclusion of a service contract had not been malicious; (b) there had been no binding agreement between ○○○ Group and Nonindicted Company 20 on the creation of a penting team; and (c) Nonindicted 43 and Nonindicted 44 had been committed with exchange of opinions on both sides; and (d) Nonindicted 43 and Nonindicted 44 did not have any obligation. Accordingly, the Defendants’ crime of abuse of official authority

Examining the reasoning of the lower judgment in light of the relevant legal doctrine and evidence duly admitted, it cannot be deemed that the crime of abusing authority recorded in the facts charged was committed as a non-obligatory day. Therefore, contrary to the Prosecutor’s grounds of appeal, the lower court did not err in its judgment by misapprehending the legal doctrine regarding the crime of abusing authority, etc., or by exceeding the bounds of the principle of free evaluation of evidence

아. ▲▲▲▲그룹에 대한 본부장 임명 요구

The lower court determined that Defendant 2 and Nonindicted 45, who received the former president’s order, demanded Nonindicted 46 to appoint Nonindicted 47 to appoint Nonindicted 46, could not be deemed to have exercised the authority of the president, the senior secretary on economic affairs, and the vice-chairperson of the Financial Services Commission. Examining the reasoning of the lower judgment in light of the aforementioned legal doctrine and evidence duly admitted, the lower court did not err by misapprehending the legal doctrine on the crime of abuse of authority, contrary to what is alleged in the grounds of appeal by the special prosecutor. The Supreme Court ruling cited as the grounds of appeal in the grounds of appeal

5. Compelling;

A. Intimidation, which is an element of the crime of coercion

The crime of coercion is a crime that interferes with the exercise of a human right by violence or intimidation or makes another person perform an act that is not obligated. Here, intimidation refers to the act of objectively restricting the freedom of decision-making or notifying harm that is likely to cause severe harm to the point of obstructing the freedom of decision-making (see, e.g., Supreme Court Decisions 2002Do3501, Nov. 22, 2002; 2003Do763, Sept. 26, 2003). In order for such intimidation to be recognized, there is a concrete threat of harm and injury to the extent possible (see, e.g., Supreme Court Decisions 94Do2187, Sept. 29, 195; 201Do2412, May 26, 2011).

A threat of harm and injury is sufficient to have the perception that it would cause harm and injury to the other party through speech or behavior, even if it is not necessarily a clear way, and may be indirectly made through a third party. A threat of harm and injury is also a threat of harm and injury even in a case where an actor demands illegal delivery of property or property benefits, and causes fear that the other party would suffer disadvantage if the other party refuses to comply with the demand based on his/her occupation, status, etc. (see, e.g., Supreme Court Decisions 2004Do1565, Jul. 15, 2005; 2010Do13774, Apr. 11, 2013). Whether a threat of harm and injury to the degree of causing fear or fear of harm and injury should be determined by taking into account the relevant circumstances, such as the duty, social status, mutual relation between the parties to the act, and forced rights and obligations (see, e.g., Supreme Court Decisions 2007Do763181, Apr. 29, 2010).

Even if an actor has an occupation or position that may have an effect on another person in the course of performing his/her duties or in fact, and a demand was made on the basis of his/her occupation or position, the required act should not immediately be readily concluded as a threat of harm and injury. In particular, if a public official demands a public official to provide a public official himself/herself or a third party designated by him/herself with property interest or any tangible or intangible profit on behalf of the said third party, and the other party expectations any profit in relation to his/her duties and accepts the demand in consideration of such an expectation, barring any other circumstance, it is difficult to readily conclude that the said demand by a public official is a threat of

When an actor requests the other party to provide a certain interest, etc. on the basis of his occupation or position, whether the required act constitutes a threat of harm and injury as a means of coercion shall be determined by taking into account not only the position of the actor, but also the content and circumstances of such speech and behavior, the situation at the time of the demand, and whether the perpetrator and the other party’s character, career, trade relationship, etc. may have the other party perceived that the refusal to comply with the demand would have been a threat of harm and injury, and whether the perpetrator and the other party could have reasonably anticipated such harm and injury that may have been inflicted on the other party as a perpetrator. If an actor requests the other party to provide a certain benefit, etc., if the perpetrator cannot be recognized as a threat of harm and injury, it is difficult to establish a crime of coercion requiring intimidation, even

B. Requests from the above 4. A to g.

1) A prosecutor prosecuted the request from the above 4. A to the above 4. G. by abuse of authority and brought a public prosecution against the same other party for the same act. The lower court found the same not guilty on the grounds that part of the request was not the other party to the request or was not an act in compliance with the demand, and found the demand constituted intimidation in the crime of coercion.

2) However, examining the reasoning of the lower judgment in light of the foregoing legal doctrine, it is difficult to evaluate the demand from April 1 to G as the requirement of coercion, i.e., threat of harm and injury.

The lower court acknowledged that the demand from April 4. A to July 7, 200 constitutes intimidation in the crime of coercion, and citing that the demand was made by using all or part of the status of the Vice Minister of Culture, Sports and Tourism, who has the authority to manage and supervise public institutions related to tourism under the Ministry of Culture, Sports and Tourism (hereinafter “the Ministry of Culture, Sports and Tourism”) and the position of the President and the senior economic secretary who can exercise official or de facto influence

As mentioned in the lower court, the President may exercise direct and indirect authority over specific matters, such as the selection of business operators delegated to the heads of administrative division, authorization and permission of new projects, and tax investigation, etc. In the meantime, the President may seek necessary understanding and cooperation for the formulation and implementation of various policies as above. In order to exercise the authority of the President, it may be affected in the course of business activities or in fact, and such impact may occur in various forms, such as profit or disadvantage, or combination of profit and disadvantage. In the case of the Economic Secretary assisting the President and the Vice Minister of Culture, Sports and Tourism, even in the case of the Vice Minister of Economic, and the Vice Minister of Culture, Sports and Tourism, the said impact may be impact on the business activities related to his duties. However, even if the President, the Vice Minister of Economic, and Vice Minister of Culture, Sports and Tourism demanded an enterprise, etc. which may have a de facto or de facto influence on duties, the said demand cannot be evaluated as a threat of harm and injury, and the determination should be made by comprehensively taking account of the various circumstances seen in the foregoing

In this case, the former president’s demand was made at a single meeting place prepared for the purpose of explaining the president, etc. of a large enterprise and seeking cooperation. In light of the reasoning of the lower judgment and evidence duly admitted, there are no circumstances as to the content and circumstances of speech and behavior, situation at the time of the request, and character, career, and mutual relationship between the perpetrator and the other party, etc. that may be deemed to have obtained recognition that the other party would have been injured if the other party does not comply with the request at the time of such request. The same applies to the demands made by Defendant 2 and Nonindicted 42. In particular, there were no circumstances suggesting that it is reasonable to expect that Domins or corporate-related persons would be at a disadvantage without complying with the demand made by the president or the economic secretary, the senior vice president, and the second Vice Minister of Culture and Sports. Meanwhile, even though the lower court cited the statements of Domins or corporate-related persons who were demanded on the grounds of recognizing the harm and injury, the content of the request is subjective or in fact affecting the status of the president and economic secretary, and the second.

The circumstances cited by the lower court or the first instance court are insufficient to recognize as a intimidation, even though whether the circumstances constitute the position of the president, the chief secretary of economic affairs, and the second Vice Minister of Culture, Sports and Tourism, and the pressure on the position and authority of the Vice Minister.

As seen in the foregoing 2.D. D. demand for additional support related to Nonindicted Foundation 14 and Nonindicted Corporation 2 respectively, at the time when the former president made a demand for support for Nonindicted Foundation 3 and Nonindicted Corporation 8 respectively, Co-defendant 3 and Nonindicted Party 2 made an illegal solicitation with respect to their duties to the former president, and subsequently, committed an act upon the former president’s demand in return for illegal solicitation. There was awareness that there was a quid pro quo relationship between the former president and Co-defendant 3, and between the former president and Nonindicted Party 2 with respect to the former president’s performance of duties, illegal solicitation, and a quid pro quo relationship with the former president’s demand. In light of these circumstances, the former president’s demand for bribe constitutes a demand for bribe, and that Nonindicted Co-defendant 3 and Nonindicted 2 actively offered a bribe with intent to purchase duties in order to benefit from his duties by taking advantage of the former president’s demand for bribe. The former president does not have any other circumstance likely to cause fear or threat of harm and injury to the former president.

In short, among the judgment of the court below, the demand from the above 4. A to the above 4. G. does not constitute a threat or threat of harm, i.e., the elements for establishing the crime of coercion. Nevertheless, the court below convicted the Defendants of this part of the charges of coercion on the premise that the demand from this part constitutes a threat of harm. In so determining, the court below erred by misapprehending the legal principles on intimidation, thereby affecting the conclusion of the judgment. The Defendants’ assertion contained in the grounds of appeal on this point is justified (the part that was not clearly asserted is not guilty, or is clearly disputed in the supplemental appellate brief)

다. ▲▲▲▲그룹에 대한 본부장 임명 요구

The lower court affirmed the first instance judgment that recognized that Defendant 2 and Nonindicted 45 demanded the victim Nonindicted 46 to appoint Nonindicted 47 as the head of the headquarters constituted intimidation in the crime of coercion, and that Defendant 1 had a conspiracy with the former president, Defendant 2, and Nonindicted 45 and a functional control over the conduct.

Examining the reasoning of the lower judgment and the reasoning of the first instance judgment in light of the aforementioned legal doctrine and evidence duly admitted, the lower court did not err in its judgment by misapprehending the legal doctrine regarding intimidation of coercion and joint principal offenders, or by exceeding the bounds of the principle of free evaluation of evidence in violation of logical and empirical rules, contrary to

D. Nonindicted 48’s demand for share in Nonindicted 49 corporation

The lower court determined that: (a) the Defendants conspired with Nonindicted 50, Nonindicted 51, Nonindicted 52, and Nonindicted 53 to threaten the victim Nonindicted 48, who was the representative director of Nonindicted 54 corporation, to bring about 80-90% of the shares in Nonindicted 49 corporation, thereby allowing Nonindicted 48 to perform an unobligatory act; (b) the Defendants failed to comply with Nonindicted 48, thereby making the Defendants commit an attempted act.

Examining the reasoning of the lower judgment in light of the aforementioned legal doctrine and evidence duly admitted, the lower court did not err in its judgment by misapprehending the legal doctrine regarding the conspiracy, functional control, and intent of coercion, or by exceeding the bounds of the principle of free evaluation of evidence in violation of logical and empirical rules, contrary to what is alleged in

6. Remaining portion

A. Violation of the Specific Crimes Aggravated Punishment Act

The lower court determined as follows. Nonindicted 55 promised to transfer the shares of Nonindicted Incorporated Company 56 in the sense that he/she requested Defendant 1 to exercise influence to the former president, etc. in order to ensure the successful implementation of the project, and Defendant 1 also agreed to acquire shares from Nonindicted 55 with the knowledge of such circumstances.

Examining the reasoning of the lower judgment in light of relevant legal principles and evidence duly admitted, the lower court did not err in its judgment by misapprehending the legal doctrine regarding good offices or by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, contrary to what is alleged in the grounds of appeal by Defendant 1. The Supreme Court precedents cited in the grounds of appeal are different from this case

(b)Violation of the Act on Testimony, Appraisal, etc. before the National Assembly;

The lower court determined that Defendant 1 could have anticipated to attend as a witness. Examining the reasoning of the lower judgment in light of the evidence duly admitted, the lower court did not err in its judgment by misapprehending the relevant legal doctrine or by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, contrary to what is alleged in

C. Attempted Fraud

The lower court determined that it is difficult to readily conclude that Defendant 1 submitted a research service proposal to Nonindicted Foundation 14 with the intent to acquire money from Nonindicted Foundation 14 in the name of Nonindicted Company 20, on the ground that it is difficult to conclude that Defendant 1 submitted a research service proposal from Nonindicted Foundation 14.

Examining the reasoning of the lower judgment in light of the relevant legal principles and evidence duly admitted, the lower court did not err in its judgment by omitting judgment or exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules.

(d) A destroyed victim;

1) Defendant 1’s destruction of evidence

The lower court determined that Defendant 1 instigated the destruction of evidence by ordering Nonindicted 52 and Nonindicted 57, etc. to discard all five computers of the office of Nonindicted 58 Co., Ltd. In light of the relevant legal doctrine and evidence duly admitted, the lower court did not err in its judgment by misapprehending the legal doctrine regarding the destruction of evidence, etc., or by exceeding the bounds of the principle of free evaluation of evidence in violation of logical and empirical rules, contrary to what is alleged in the

2) Defendant 2’s destruction of evidence against Nonindicted 25 and Nonindicted 59

A) The lower court determined that Defendant 2 instigated the destruction of evidence by ordering Nonindicted 25 to make a false statement or preparing for search and seizure by the prosecutor’s office. Defendant 2’s ground of appeal disputing the fact-finding that led to the lower court’s determination is practically disputing the lower court’s determination on the selection and probative value of evidence belonging to the lower court’s free judgment. Examining the reasoning of the lower judgment in light of the relevant legal doctrine and the evidence duly admitted, the lower court did not err in its judgment by misapprehending the legal doctrine regarding the destruction of evidence, or by exceeding the bounds of the principle of free evaluation of evidence, contrary to what is alleged in the grounds of appeal by Defendant

B) The lower court determined that there was no proof of a crime against Nonindicted 59 in the part of the charge of causing destruction of evidence against Nonindicted 59, on the grounds that “Nonindicted 60 made a statement to delete mobile phone calls, e-mail, etc., and it clearly stated that it was Defendant 2’s order” constituted hearsay evidence, and that the statement by Nonindicted 59 constitutes hearsay evidence, and that it did not meet the requirements prescribed in Article 316(2) of

Examining the reasoning of the lower judgment in light of the relevant legal doctrine and evidence duly admitted, the lower court did not err by misapprehending the legal doctrine regarding hearsay evidence and admissibility of evidence, or by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules.

7. Scope of reversal

Of the lower judgment, the part of coercion on the demand from the above 4. A to the above 4. G. ought to be reversed for the same reason as seen in the above 5.b. Moreover, the part of conviction against the Defendants (including the part of acquittal in the grounds of appeal) in the lower judgment should be reversed on the ground that the aforementioned reversed part and the part of conviction on which one sentence was pronounced in relation to concurrent crimes under the former part of Article 37 of the Criminal Act should also be reversed.

8. Conclusion

It is so decided as per Disposition by the assent of all participating Justices, with the exception of the separate opinion by Justice Jo Hee-de, Justice Min You-sook, and Justice Park Sang-ok as to the joint principal offender of the crime of acceptance of bribe and the third party bribery related to the non-indicted 8 corporation, and the separate opinion by Justice Park Sang-ok as to the intimidation of the crime of acceptance of bribe, and by the separate opinion by Justice Park Jung-hwa, Justice Min You-sook, and Justice Kim Young-soo as to the intimidation of the crime of coercion.

9. Concurring Opinion by Justice Jo Hee-de, Justice Ansan-chul, and Justice Lee Dong-won

A. As to the scope of becoming joint principal offenders of the crime of acceptance of bribe by a public official and a non-public official

1) If a public official and a non-public official committed a crime of accepting a bribe in connection with the duties of a public official through a joint processing intent and functional control based on such intent, the joint principal offender of the crime of acceptance of bribe as prescribed in Article 129(1) of the Criminal Act may be established against a public official and a non-public official. However, in a case where it is evident that a public official and a non-public official gather the bribe in advance to vest in the non-public official, or use or consume the bribe entirely in light of the nature of the bribe, if a public official had a non-public official given a bribe to a non-public official, the establishment of the crime of bribery against a third person under Article 130 of the Criminal Act is limited to the issue, and it cannot be said that a public official and a non-public official constitute joint principal offender of the crime of acceptance of bribe

2) The Criminal Act separates between the crime of acceptance of bribe under Article 129(1) and the crime of acceptance of bribe under Article 130 according to the subject to which a bribe reverts, and the elements of each crime are different. In comparison with the crime of acceptance of bribe under Article 129(1) of the Criminal Act, in a case where a public official allows a third party to deliver a bribe without a direct bribe to a third party, and allows a third party to receive a bribe, the same punishment as the crime of acceptance of bribe shall be imposed only on the case where a public official receives an unlawful solicitation and conducts such an act, and if there is no illegal solicitation, such punishment shall not be imposed (see Supreme Court Decision 98Do1234, Sept. 22, 1998, etc.). In a case where a public official allows a third party to receive a bribe without receiving a bribe directly and without having another party receive a bribe, the crime of acceptance of bribe can be deemed to have been established only when the third party received a bribe as a public official’s deceased person or proxy, etc.

In the joint principal offense, the intent of joint processing is one of the crimes committed by a non-public official to commit a specific criminal act with a common intent, and is to move one’s own intent to practice using another’s act (see, e.g., Supreme Court Decisions 2001Do4792, Nov. 9, 2001; 2008Do1274, Apr. 10, 2008). Considering the attitude of the Criminal Act that separates between the crime of acceptance of bribe and the crime of acceptance of bribe against a third party, “specific criminal act”, which is the contents of the joint principal offense of the crime of acceptance of bribe, refers to “a criminal act in which a public official receives a bribe entirely or partially with a non-public official,” in view of the contents and nature of the joint principal offense and the crime of acceptance of bribe, and in fact, a public official receives a bribe in light of the public official’s content and nature of the act of acceptance of the bribe, and thus, the crime of acceptance of bribe against a third party cannot be established.

3) According to the facts charged in this case, Defendant 1’s demand by the former president to Nonindicted 2 is support for horse riding necessary for Nonindicted 1’s wife from Germany. The contents that the former president and Defendant 1 shared with the former president in advance and carried out, and all the contents that Defendant 1 received from Nonindicted 2, etc. on the records of this case are only support for horse riding for Nonindicted 1. The “riding support for Nonindicted 1” in nature does not require or allow the former president to use or enjoy any benefit. The former president merely demanded Nonindicted 2 to offer a bribe “Nonindicted 1 horse riding support” against Defendant 1 or Nonindicted 1, and did not require any bribe to the former president. In fact, it is difficult to view that the former president and Nonindicted 1 were naturally responsible for the receipt of a bribe between Defendant 1 and Defendant 1 and the former president’s offering of a bribe and the former president’s offering of a bribe, in view of the nature of the crime of acceptance of a bribe between Defendant 1 and Defendant 1 and the former president’s offering of a bribe and the former president’s offering of a bribe.

4) The establishment and punishment of a crime or a joint principal offender is determined in accordance with the contents of the intent and conspiracy of the relevant Defendant. Nevertheless, the lower court acknowledged the joint principal offender of the crime of acceptance of bribe under Article 129(1) of the Criminal Act with respect to the service cost, horses themselves, and the part of the profits used by Nonindicted 1 among the support of Nonindicted 1’s horse riding, while disregarding the intent of the former president and Defendant 1, and Nonindicted 2, etc. on the contents of the said act. In so determining, the lower court erred by misapprehending the legal doctrine on the scope to which a public official and a non-public official may become joint principal offender of the crime of acceptance of bribe and the crime of bribery to a third party. Accordingly, the part on the violation of the Specific Crimes Aggravated Punishment Act (Bribery) related to the support of

B. As to whether horses constitute a bribe

1) The majority opinion affirmed the judgment of the court below that recognized that Defendant 1 received Salcido, Vitana and Rausing from Nonindicted 2, etc. as a bribe on the ground that there was a mutual agreement between Defendant 1 and Nonindicted 3 on November 15, 2015 that the right to actually use and dispose of Salcido and the horses to be purchased in the future was possessed by Defendant 1.

However, it is difficult to agree with the Majority Opinion.

2) Comprehensively taking account of the reasoning of the lower judgment and the record of the instant case, it is difficult to readily conclude that Defendant 1 and Nonindicted 3 transferred the ownership of, or the right to actually dispose of, Salcido and the horses subsequently purchased to Defendant 1 on November 15, 2015. Specific reasons are as follows.

A) It is insufficient to recognize that there was a mutual agreement between Defendant 1 and Nonindicted 3 on November 15, 2015 between Defendant 1 and Nonindicted 3 with the intent to transfer the ownership of, or the right to de facto sell, Salcido to Defendant 1.

Notwithstanding the terms and conditions stipulated in the original service agreement, Defendant 1 thought that the ownership of Salcido was in the internal relationship with Nonindicted Company 6. However, unlike his own idea, Defendant 1 asked Nonindicted 3, who was in charge of Nonindicted 4’s authority to decide on all matters, such as the purchase of horses and the reversion of the ownership of horses, in relation to the horse’s horse riding support to Nonindicted 1, and demanded an interview with Germany. On November 15, 2015, Defendant 3 sent a text message to Nonindicted 5 on November 15, 2015, stating that he was aware that Defendant 1 was due to the ownership of Salcido.

However, there is insufficient reason to view that Defendant 1 demanded Nonindicted 3 to transfer the ownership or the right to de facto disposal of Salcido and that Nonindicted 3 understood and consented to Defendant 1’s demand. That is, it is difficult to deem that Defendant 1 demanded Nonindicted 3 through Nonindicted 5 to have made an explicit confirmation of the ownership of Salcido and demanded the transfer of the ownership or the right to de facto disposal of Salcido to Nonindicted 3, etc. It is difficult to deem that Defendant 1 demanded the transfer of the ownership or the right to de facto disposal of Salcido, beyond interpreting that Defendant 1 demanded an interview with Nonindicted 3 through Nonindicted 5 to have made an explicit confirmation of the ownership of Salcido. Even if it is deemed that Defendant 1’s demand for the transfer of the ownership or the right to de facto disposal of Salcido was a demand for the ownership or the right to de facto disposal of Salcido, Nonindicted 3 expressed his intention to support it if Defendant 1 notified Defendant 1’s demand, and it is difficult to recognize that Nonindicted 3 received the demand of Defendant 1 to transfer the ownership or the right to de facto disposal.

On November 17, 2015, Nonindicted 5, 2015, sent to Nonindicted 4 e-mail a written statement upon Defendant 1’s request. This does not require Defendant 1’s ownership, but only requires Nonindicted 6 to write down Nonindicted Company in the column of spawn. As to this, in the first instance of the relevant case, Nonindicted 5 sent documents to Nonindicted 6 Company, and Non-Indicted 5 cannot use an expression “ how to see the public opinion on the horse owner’s registration” and, in turn, it is difficult to view that Nonindicted 5’s statement is merely a statement made by e-mail to require Nonindicted 5’s right to purchase or sell the horses, including the right to purchase or sell the horses that reached 1.5 million square meters, and thus, it is difficult to view that Nonindicted 5’s request for the foregoing e-mail to either de facto request the purchase or sale of the horses, or to request the actual payment of the horses, including the right to purchase or sell the horses, in advance.

Therefore, it is insufficient to recognize that there was an agreement between Defendant 1 and Nonindicted 3 on November 15, 2015 with the intent to transfer the ownership of, or the right to actually dispose of, Salcido to Defendant 1.

B) It is difficult to recognize that there was a mutual agreement between Defendant 1 and Nonindicted 3 with the intent to transfer the ownership of, or the right to de facto sell, Salcido, and Rausing to Defendant 1 even after November 15, 2015.

On October 14, 2015, Nonindicted 3, etc. purchased three vehicles from Nonindicted Company 6’s funds (TGan, T5 Mulivan, T6 Mulivan) to transfer them to Nonindicted Company 7, Defendant 1. After that, Nonindicted Company 6 entered into a contract to sell T5 Mulivan and T6 Mulivan among the foregoing vehicles to Nonindicted Company 7 on February 2016, Nonindicted Company 6 entered into an agreement to sell T-5 Mulivan and T6 Mulivan among the foregoing vehicles at a trading price of 148,526.02 (TGan recovered from the insurance company in excess of the remaining value due to snow-only accident). However, there is no reason to view that the vehicle sales price was higher than the account book, and that Nonindicted Company 6 was lower than the average trading price of the ordinary vehicles at that time, and thus, Nonindicted Company 7 was difficult to view that Nonindicted Company 7 had sold the vehicle at that time, Nonindicted Company 7, 2009.

If there was an agreement between Defendant 1 and Nonindicted 3 on and after November 15, 2015, that Defendant 1 would transfer the ownership or actual right of disposal of the horses to be purchased and then to Defendant 1, Defendant 1 would be difficult to obtain payment of the amount of money that Defendant 1 would purchase from Nonindicted Company 6 and that Nonindicted Company 7 would actually pay to Nonindicted Company 6 about KRW 140,000. On the premise of the agreement as above, Defendant 1 and Nonindicted 3 would have agreed to transfer the ownership or actual right of disposal of high-priced horses to Defendant 1 as a bribe, but it would be difficult to accept this conclusion by coloring Nonindicted Company 6, and thus, it would have been difficult to have reached an agreement on the transfer of ownership or the right of disposal of the vehicles in the name of Nonindicted Company 1 and Nonindicted Company 3 to address the ownership of the vehicle in the name of Nonindicted Company 3 as if it were recorded in Nonindicted Company 4’s inside design. In addition, if the agreement on the transfer of ownership or the right of disposal of the vehicle was made in the vehicle under Defendant 1 and Nonindicted Company 37.

After September 23, 2016, when Nonindicted 1’s assistance was reported to Nonindicted 6 Company 1, Nonindicted 2, etc., Nonindicted 1, etc. were unable to continue to provide horse riding assistance to Nonindicted 1. On September 28, 2016, Nonindicted 1, Nonindicted 3, and Nonindicted 4 meetings were held at the German hotel on the following day on the ground that Nonindicted 3 would be able to follow the media once it was exchanged with Nonindicted 4 through Nonindicted 4 on September 29, 2016. On the following day, Nonindicted 1 and Nonindicted 61, who was in charge of Nonindicted 1 and Nonindicted 4, who was in charge of Nonindicted 1 and Nonindicted 6, transferred the right to horse riding to Nonindicted 1 and Nonindicted 3, who was in charge of Nonindicted 1 and Nonindicted 6, who was in charge of Nonindicted 1’s disposal of the ownership of Nonindicted 1 and Nonindicted 3, who was in charge of Nonindicted 1 and Nonindicted 4, who were in charge of the foregoing horse sale.

C) Defendant 1, based on the former president’s power, concluded the instant service agreement with Nonindicted Company 6 and had Nonindicted Company 6 purchase high-priced horses, and received them, and Nonindicted 3, etc. were in compliance with Defendant 1’s demand. However, solely on the foregoing circumstance, it cannot be deemed that there was an agreement between Defendant 1 and Nonindicted 3 on November 15, 2015 or thereafter, on the part of Defendant 1 and Nonindicted 3 on the transfer of the ownership of, or the right to actually sell, Salcido, and Rausing to Defendant 1. The same applies even when comprehensively differences between the time of purchase and the time of purchase of Salcido and the time of the purchase of Rausing.

On the other hand, around November 15, 2015, Defendant 1, who was entitled to acquire the ownership of the horse at any time, did not need to demand Nonindicted 3, etc. to transfer the ownership of the horse to himself/herself. Accordingly, Defendant 1 demanded that the horse be transferred the ownership of the horse to Nonindicted 6, and Nonindicted 3, etc. also did not express his/her intent to transfer the ownership of the horse that was not specifically demanded by Defendant 1 to Defendant 1. On September 23, 2016, Defendant 1 reported the horse riding support to Nonindicted 6 Company 1, which had no choice but to suspend the horse riding support to Nonindicted 1. In that process, it is difficult to deem that Defendant 1 and Nonindicted 3, etc. agreed to transfer the ownership of the horse to Defendant 1 after November 2018. In such cases, it is difficult to deem that Defendant 1 had the ownership of the horse or the actual right to dispose of the horse.

D) Therefore, it is difficult to readily conclude that there was an agreement between Defendant 1 and Nonindicted 3, etc. on the ownership of, or the right to de facto sell, Salcido and the horses to be purchased thereafter with Defendant 1.

3) Ultimately, it is difficult to recognize that Defendant 1 received the said horses as a bribe from Nonindicted 2, etc. Nevertheless, the lower court determined that Defendant 1 received the said horses themselves as a bribe. In so determining, the lower court erred by misapprehending the legal doctrine regarding a bribe and by exceeding the bounds of the principle of free evaluation of evidence in violation of logical and empirical rules. Accordingly, the part of the lower judgment that determined the horses themselves as a bribe in the violation of the Specific Crimes Aggravated Punishment Act (Bribery) related to riding support for Nonindicted 1 as a bribe and the part that violated the Act on Regulation of Punishment of Criminal Proceeds Concealment premised on the premise thereof should be reversed.

C. As to whether an illegal solicitation related to Nonindicted Corporation 8 can be recognized

1) The Majority Opinion upheld the lower court’s determination as follows.

In other words, the succession process, which is the object of illegal solicitation, is not a fixed change due to its nature, rather than a change in the economic, social, institutional, and political environment, specific contents are bound to be flexible. There was a succession process that “Nonindicted 2, who used the minimum personal fund to secure to the maximum extent voting rights that can be actually exercised against Nonindicted Company 6 and Nonindicted Company 9, the core affiliate companies of △△ Group.” The former president could have been aware of the succession process. The former president and Nonindicted 2 had common perception or understanding on the former president’s performance of duties for Nonindicted 2’s succession and Nonindicted 2’s support for Nonindicted Corporation 8 was a consideration for the performance of duties, and thus, it can be recognized that there was an “illegal solicitation by an implied declaration of intention.”

However, it is difficult to agree with the Majority Opinion.

2) The purpose of the crime of bribery to a third party under Article 130 of the Criminal Act requires “illegal solicitation” is to prevent the scope of punishment from becoming unclear. Here, “illegal solicitation” is also possible by an implied declaration of intent. However, in order to constitute an illegal solicitation by an implied declaration of intent, there is a common perception or understanding as to the content of the performance of duties subject to solicitation between the parties and the fact that the money and valuables provided to a third party are remuneration for the performance of their duties. It is difficult to view that there was an illegal solicitation by an implied declaration of intent in cases where a public official first demands a third party to provide money and valuables to a third party without such awareness or understanding, or by another motive irrelevant to the performance of his/her duties (see, e.g., Supreme Court Decision 2008Do6950, Jan. 30, 2009).

3) Since the succession process becomes the object of illegal solicitation between the former president and Nonindicted 2, its existence should be recognized to the extent that there is no reasonable doubt. However, even in full view of all the evidence submitted by the special prosecutor to the fact-finding court, the special prosecutor cannot recognize the “management succession” subject to a specific illegal solicitation in the facts charged. A part of the pending issues asserted by the special prosecutor can be recognized as having an effect directly and indirectly favorable to Nonindicted 2’s securing control over Nonindicted Company 6 or Nonindicted Company 9 in the event of success. However, this is one of the following factors: (a) it is ex post facto and as a result, that such effect is partially confirmed; (b) it is only one of the various effects such as rationalization of business through restructuring. This alone is insufficient to deem that the progress of the pending issues asserted by the special prosecutor was conducted for succession. It is also true that the executives and employees of the future strategic office recognized Nonindicted 2 as the successor of Nonindicted 63, or actively participated in the pending issues, or that the financial and market experts of the financial and market organization actively asserted that they had been related to the control over the affiliates of Nonindicted 2.

4) The purport of this part of the facts charged lies in the fact that there was an illegal solicitation in the private interview between the former president and Nonindicted 2. However, according to the records, the direct evidence as to what kind of solicitation was in detail between the former president and Nonindicted 2 on that spot, other than the former president and Nonindicted 2’s statement, is only part of the conversation among the business pocketbooks of Defendant 2 set up by Defendant 2, which the former president after the private interview, and there is only the statement of Defendant 2 on that part. In this case where the former president and Nonindicted 2 asserted that there was no illegal solicitation, there is no objective evidence to prove illegal solicitation except for Defendant 2’s business pocketbooks, etc. The part of the conversation among the business pocketbooks of Defendant 2 cannot be admissible as evidence. Although the lower court denied admissibility of the contents of the conversation, the lower court had already been examined on Defendant 2’s business pocketbooks and the examination protocol on the witness examination conducted in detail on that part, and even if the contents of Defendant 2’s business pocket and the record were still inadmissible as evidence.

5) Defendant 2’s business pocket book, which is a evidence to acknowledge the existence of an illegal solicitation regarding the succession in the instant case, cannot be used as evidence because it has no admissibility of evidence. In addition, even after examining all the evidence submitted by the special prosecutor to the fact-finding court, there is no specific evidence to acknowledge that there was a succession work or an illegal solicitation. Criminal facts are proven by the prosecutor and, without such evidence, not guilty should be determined. It is also erroneous in the Supreme Court’s decision with the same purport as the Constitution and the Criminal Procedure Act order, and the Supreme Court’s precedents continuously held to the same effect. Recognizing the fact that there was a comprehensive pending issue, rather than an individual pending issue, which is a comprehensive pending issue, without specific evidence and facts, and if it is recognized that there was an implied illegal solicitation, it would make it considerably difficult to secure the Defendant’s right to defense, and

6) Since the instant case was sentenced to imprisonment with labor for not less than 10 years with respect to Defendant 1, gross mistake may be a legitimate ground for appeal (Article 383 subparag. 4 of the Criminal Procedure Act). The lower court acknowledged illegal solicitation with respect to Nonindicted Corporation 8 even without any specific evidence to clearly prove illegal solicitation. In so determining, the lower court should be deemed to have erred by misapprehending the legal doctrine regarding illegal solicitation in the crime of bribery to a third party, misunderstanding of grave facts, or exceeding the bounds of the principle of free evaluation of evidence in violation of logical and empirical rules. Nevertheless, the lower court’s determination is justifiable. This is based on the evidence with probative value, which makes it possible for a judge to have the authenticity of the facts charged to the extent that there is no reasonable doubt, and if there is no such proof, it cannot be accepted, even if there is no doubt about the Defendant’s conviction.

7) In such purport, the lower court found the Defendant guilty of the violation of the Specific Crimes Aggravated Punishment Act (Bribery) relating to Nonindicted Corporation 8 among the facts charged in the instant case. In so doing, it erred by misapprehending the legal doctrine on illegal solicitation of the crime of bribery to a third party, misunderstanding of grave facts, or exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules. Therefore, the part on the violation of the Specific Crimes Aggravated Punishment Act (Bribery) relating

D. Conclusion

Therefore, I express my Concurrence with the Majority Opinion that the guilty portion of the lower judgment should be reversed, but with different reasons for reversal.

10. Concurrence by Justice Park Sang-ok as to joint principal offenders of the crime of acceptance of bribe

Of the grounds of the Majority Opinion, the part on whether non-public officials can become joint principal offenders of the crime of acceptance of bribe and the scope thereof cannot be consented thereto. The Majority Opinion argues that if a public official and non-public officials committed a crime of acceptance of a bribe in connection with the public official’s duties through joint processing and functional control over the functional control over the same, a joint principal offender of the crime of acceptance of bribe under Article 129(1) of the Criminal Act is established. (2) Whether a bribe belongs to either a public official or non-public official, who is a joint principal offender, after the establishment of the crime of acceptance of bribe, is not affected by the already established crime of acceptance of bribe, and even if a public official or non-public official, in advance, proposed to vest a bribe in a non-public official, or used or consumed a bribe by nature, such circumstance does not affect the establishment of the crime of acceptance of bribe merely because it constitutes the crime of acceptance of a bribe after the establishment of joint principal offender of the crime of acceptance of bribe. From among the logic of the Majority Opinion, the aforementioned part on the general theory on the establishment of the crime of acceptance of bribe between a public official and a non-public official, is established.

As the separate opinion states in detail on the above 9. A. As for the reasons why the former president requested Nonindicted 2 to provide a bribe "non-indicted 1" to Defendant 1, and did not demand any bribe to him/her, and actually accepted a bribe, Defendant 1 is Defendant 1, and Defendant 1 is unable to receive and deliver a bribe due to the nature of the bribe, and only Defendant 1 is able to receive and deliver it. As such, joint principal offenders of the crime of acceptance of bribe cannot be established under Article 129(1) of the Criminal Act, and recognition and intention of the former president and Defendant 1 are natural, and it is reasonable to recognize the intent of the crime of bribery to a third party under Article 130 of the Criminal Act. Accordingly, Defendant 1 can only establish the crime of bribery to a third party under Article 130 of the Criminal Act.

Nevertheless, the lower court found Defendant 1 guilty on the premise that the former president and Defendant 1 constituted joint principal offenders of the crime of acceptance of bribe under Article 129(1) of the Criminal Act. In so determining, the lower court erred by misapprehending the legal doctrine on whether non-public officials can become joint principal offenders of the crime of acceptance of bribe and the scope thereof, thereby adversely affecting the conclusion of the judgment.

Therefore, the part of the judgment of the court below on conviction related to Nonindicted 1’s violation of the Specific Crimes Aggravated Punishment Act (Bribery) should be reversed. In addition to the part as to whether non-public officials can become joint principal offenders of the crime of acceptance of bribe and the scope thereof, it is consistent with the majority opinion with the opinion of the majority opinion. As such, I express my separate opinion as to the part inconsistent with

11. Separate opinion by Justice Park Jung-hwa, Min You-sook, and Justice Kim Seon-soo on intimidation of the crime of coercion

Of the facts charged in the instant case, the Majority Opinion states that ① demand for contribution, etc. related to each of the instant foundations, ② demand for additional support to △△ Group related to Nonindicted Foundation 14, ③ demand for △△ Group’s support to Nonindicted Corporation 8 (hereinafter referred to as the “instant three demands”) does not constitute a threat of harm as a means of coercion. However, the Majority Opinion’s conclusion cannot be deemed to be difficult to deem that the instant demand for Nonindicted Company 29 and the supply contract with Nonindicted Company 29 and Nonindicted Company 31 was made, ② demand for advertising order with Nonindicted Company 20, ② demand for signing a service contract with Nonindicted Company 32 using the sports group against △△△△△ Group, ③ demand for employment and replacement of assignment to Nonindicted Company 32 and Nonindicted Company 35, and ④ demand for the conclusion of service contract with Nonindicted Company 20 and support for Nonindicted Corporation 8 (hereinafter referred to as the “instant demand for intimidation”) by utilizing the sports group for Nonindicted Company 41, etc. as an object of coercion.

A. As pointed out in the Majority Opinion, the demand based on the position cannot be evaluated as a threat of harm and injury solely on the fact that the perpetrator is in a position to influence the other party. Whether such demand can be evaluated as a threat of harm and injury ought to be determined by comprehensively taking into account not only the relationship and position between the perpetrator and the other party, but also the content of the demand, the situation at the time of the demand, the speech and behavior, the details of the other party’s response to the demand, and the party’s attitude in the process. In light of these criteria for determination, the Majority Opinion’s determination that the subject matter does not constitute intimidation in the crime of coercion contradicts empirical rules from the perspective of

The Supreme Court has consistently held that a threat of harm and injury may be a threat of harm and injury even in cases where an actor does not respond to a specific demand based on his/her position or status by using an illegal act. (see, e.g., Supreme Court Decisions 2001Do6747, Aug. 27, 2002; 2003Do709, May 13, 2003). It is reasonable to readily consider specific circumstances that a perpetrator’s demand for notice of harm and injury constitutes a threat of harm and injury and injury and that it does not constitute a threat of harm and injury and injury and that it does not constitute a crime of coercion. Considering that an actor’s demand for notice of harm and injury and that it does not constitute a crime of coercion to the extent that it does not constitute a threat of harm and injury and that it does not constitute a crime of harm and injury and that it does not conform with the legal principles and comprehensive requirements for notice of harm and injury and that it does not constitute a crime of coercion by taking into account the following circumstances into account.

In determining whether an implied threat of harm and injury has occurred, the standard should be the empirical rule established from the perspective of an average of ... The “experience rule” functioned as the limitation of the principle of free evaluation of evidence refers to the rule on the causal relationship of things, knowledge of sex, or causation from social experience. Here, “social experience” should be deemed to mean the experience experienced from the perspective of an average of society. In addition, “average social person” is not a “roman who is isolated from society and advanced, and is confined to islands, and is not a roman who has a strong will with religious or philosophical belief that does not interfere with any external pressure or intimidation, and it should be considered that a person has a universal desire and fear in society while maintaining the relationship with other persons, and that person has a reasonable ability to determine whether there was a harm and injury at the time of social environment, such as an average person’s perception of social or religious operation, and that person’s perception and experience at the time of social risk should not be considered as an average person’s perception or experience at the time of society.

강요 불인정 사안과 대상 사안 사이에는 강요죄의 성립 여부를 좌우할 만한 차이가 있다. 대기업들에 대한 이 사건 각 재단 관련 출연 등 요구는 중간에 민간경제단체인 ◁◁◁이 개입되어 있다는 점에서 대통령, 경제수석비서관과 문체부 제2차관이 각 개별 기업 대표들에 대해 직접 요구한 대상 사안과는 다르다. 청와대가 이 사건 각 재단에 대한 전체 출연규모, 출연기업의 범위 등을 정하여 ◁◁◁에 전달하였으나, 구체적인 각 기업별 출연금액은 ◁◁◁이 내부 기준에 따라 자체적으로 정하였다. 또한 ◁◁◁의 요청을 받은 기업들은 ◁◁◁ 임직원들로부터 청와대의 관심사항이라는 말을 들었으나, 일부 기업은 그 요청을 거절하였다. 즉 공소외 64 주식회사는 유례없는 적자와 노조파업 등을 이유로, ■■그룹은 이미 체육 분야에 많은 지원을 하고 있다는 이유로, ◆◆◆그룹은 단순히 정부나 청와대에서 연락이 왔구나 하는 정도로 생각하여, ★★그룹은 청와대 주도로 설립된다는 사실을 알지 못하였다는 등의 이유로 거절하였다.

In addition, at the time of △△ Group’s request for additional support related to Nonindicted 14 Foundation and for △△ Group’s request for △△ Group’s support to Nonindicted 8, △△ Group, the pending issue was “the prompt promotion of a new patent plan and the re-acquisition of a license duty-free shop for △△△△ Group.” The pending issue was “management succession” in △△ Group, and △△ Group’s co-defendant 3 and △△ Group’s Vice-Chairperson 2 received the former president’s request in return for an illegal solicitation of the pending issue, and there is a difference between the former president and Defendant 2 without a request for pending issues. The above request for △△△ Group and △△△ Group is, as recognized by the majority opinion, the intent of co-defendant 3 and Nonindicted 2 to purchase the duties to obtain benefits related to their duties by taking advantage of the demand of the former president’s bribe. On the other hand, in the case of a victim of the former president’s request, etc., the case is one unilaterally accepting the former president’s request.

B. We examine the demand for the conclusion of a supply contract with Nonindicted Company 29 and the demand for the order to place an advertisement to Nonindicted Company 31.

According to the former president’s order, Defendant 2’s demand against Nonindicted 28 of the △△△△ Group’s vice-president of the company directly related to the main business objective of the △△△ Group is to restrict the freedom of management decision-making or interfere with the freedom of execution of opinions on the business activities of the company directly related to the main business objective of the △△△△△ Group. Demanding △△△△ Group on the manufacture and sale business of various vehicles, general machinery and parts thereof, etc. to be supplied with the designated companies, which are Nonindicted Company 29, for the main business objective is to unfairly intervene in a significant business decision-making that may directly affect the products manufactured by the △△△△△ Group. Moreover, demanding a specific company, which is Nonindicted Company 31, an advertisement on the products and the company itself, which is made by the △△△△ Group, to place an order on the products and the company itself, is also directly related to the main business objective and has no choice but to continue for a considerable period of time. It is difficult for the president or the head of the company to make a decision.

In addition, Defendant 2 directly participated in the current status of the completion and implementation of the supply by Nonindicted Company 29 from the side of △△△△ Group. This act by Defendant 2 was sufficient to make it impossible to terminate the contract with Nonindicted Company 29 and make it difficult to refuse the demand for advertising order to Nonindicted Company 31. Ultimately, △△△△△ Group concluded a supply contract with Nonindicted Company 29 by means of a negotiated contract with Nonindicted Company 29 within a short period without undergoing ordinary internal decision-making and procedures for determining the contracting party. Even though it had already concluded an advertising contract with another company, it had no choice but to terminate it and conclude a new advertising contract with Nonindicted Company 31.

In full view of all such circumstances, Defendant 2’s demand made by Nonindicted 28 to Nonindicted 28 is merely a mere cooperation request and does not voluntarily decide whether to comply therewith, it may be deemed that △△△ Group was aware that certain harm and injury would have occurred to its business activities. In the investigation agency and the first instance court, Nonindicted 28 considered Defendant 2 as being subject to Defendant 2’s request and that it would be difficult for Nonindicted Company 29 to enjoy benefits easily selected as its delivery company without undergoing the ordinary tendering procedure, and that Nonindicted Company 29 could not have been informed of the harm and injury caused to its business activities. In light of the fact that Nonindicted 28 made a statement at the investigative agency and the first instance court, the Majority Opinion recognized that Nonindicted Company 29 could not have been informed of the harm and injury caused to Defendant 31 in the process of advertising for a long time, etc., without having followed Nonindicted Company 31’s request.

Therefore, Defendant 2’s above demand constitutes implicit intimidation that is sufficient to restrict Nonindicted 28’s freedom of decision-making or interfere with the freedom of decision-making.

C. We examine the part of the demand made by Do○○ Group to establish a sports team and conclude a service contract with Nonindicted Company 20.

As the former president and Defendant 2 demanded that Nonindicted Company 20 enter into a service contract with Nonindicted Company 2 by creating 4,00, which was an indispensable team for the former president 4, was in conflict with the former president’s order, it is difficult for Nonindicted Company 2 to unilaterally make a decision on such matters as the need for continuous disbursement and management. The president or the head of the economic secretary may have the other party make a specific and specific demand. Nonindicted 43, the president of △△ Group, on February 22, 2016, demanded that Nonindicted Company 20 consult with the former president, and that Nonindicted Company 20, which was in a position of Nonindicted Company 20, would not have been in conflict with the former president’s demand for consultation. In addition, Nonindicted Company 4 and Nonindicted Company 4’s demand that Nonindicted Company 4 cooperate with the former president, and that Nonindicted Company 20, which was in a position of Nonindicted Company 20, which would have been in line with the former president’s demand for consultation with the latter. At that time, Nonindicted Company 4 and Nonindicted Company 44’s demand to have rejected.

Therefore, Defendant 2’s above demand constitutes implicit intimidation that is sufficient to restrict Nonindicted 43’s freedom of decision-making or interfere with the freedom of decision-making.

D. We examine the part of Nonindicted Co. 32 demanding the appointment and change of assignment of Nonindicted Co. 34 and Nonindicted Co. 35, and appointment of Nonindicted Co. 31 as an advertising agency.

Defendant 2, upon the former president’s order, demanded that Nonindicted 34 and Nonindicted 35 be employed by the president of Nonindicted 32 Company, while disclosing that Nonindicted 33 was a matter of interest in the upper line, and demanded that the former president appoint Nonindicted 34 and Nonindicted 35 be changed thereafter, and the position should be changed even if the time of personnel is not the time of regular appointment. In addition, Nonindicted 32 demanded that Nonindicted 31 be appointed as an advertising agency, and the former president and Defendant 2 selected Nonindicted Company 31 as an advertising agency. Such demand was a key part of the autonomous activities of the company, which is directly involved in personnel administration operated by the company in accordance with its own standards and procedures, and the content of which is not a one-time or temporary, and is not a matter that requires continuous disbursement and management for a considerable period of time. A concrete and specific demand made by the president or an economic chief secretary may in itself cause the other party to feel the above-mentioned situation.

Defendant 2 promoted the implementation of the foregoing request, and eventually, Nonindicted Co. 32 had no choice but to comply with the request even when it violated internal principles, standards, and procedures. In light of these circumstances, Defendant 2’s series of speech and demand may be deemed sufficient to bring about a doubt that there is a risk of unreasonable disadvantage to Nonindicted Co. 32’s corporate activities without having complied with the said request. In the first instance trial, Nonindicted Co. 33 may be deemed to have rejected Nonindicted Co. 3’s request from Defendant 2, who is a chief economic manager, on the sole basis of which he would have no reason to employ Nonindicted Co. 34 on the first day.” “In the perspective of doing business, Nonindicted Co. 2 would have no choice but to bring about a burden for Nonindicted Co. 3 to talk about the presidential requirements, instructions, and concerns,” and “Defendant 2 did not speak that it would be unreasonable when making the above request, or speak that it would be divided.” Defendant 2 also rejected the victim’s average disclosure of harm and injury from the perspective of investigative agencies.

Therefore, Defendant 2’s above demand constitutes implicit intimidation that is sufficient to restrict Nonindicted 33’s freedom of decision-making or interfere with the freedom of decision-making.

E. We examine the part of Nonindicted Company 41 demanding that Nonindicted Company 20 enter into a service agreement with Nonindicted Company 20 and that Nonindicted Company 8 provide support to Nonindicted Corporation 8.

Nonindicted Co. 41 is a public institution established as a subsidiary of the Korea Tourism Organization established under the Culture, Sports and Tourism for the promotion of tourism and social contribution activities. Nonindicted Co. 41 is in a position that it is difficult for Nonindicted Co. 41 to refuse the demand of the Vice Minister of Culture, Sports and Tourism or the Vice Minister of Culture, Sports and Tourism due to the direct supervision of Nonindicted Co. 41 as a public institution and thus,

Defendant 2 and Nonindicted 42, the Vice Minister of Culture, Sports and Tourism, who received an order from the former president, demanded that Nonindicted 42 enter into a service agreement with Nonindicted Company 20 by establishing a sports team with Nonindicted 41 representative director, is not a one-time or temporary, but a considerable amount of burden on the management of the company due to matters requiring continuous disbursement and management for a considerable period of time. As such, it is difficult to unilaterally make a decision even if the representative of the company is the company. Making a specific and specific demand by the president, the presidential secretary on economic affairs, and the Vice Minister of Culture, Sports and Tourism, the Vice Minister of Culture and Sports, in itself, may cause the other party to

Defendant 2 called Nonindicted 66, who had no personal or personal friendship, and unilaterally demanded the foregoing demand by Nonindicted Company 20 and unilaterally, on the grounds that the contract size demanded by Nonindicted Company 20 was too large, Defendant 2 demanded that Nonindicted 42, who has supervisory authority at this time, lower the contract amount to Nonindicted 66 and that Nonindicted 42 would create a new method for the disabled. Thereafter, Nonindicted 42 continued to participate in Nonindicted 66, such as reporting the process of the team leader and giving instructions to Nonindicted 66. In addition, Nonindicted 42 demanded Nonindicted 66 to provide support for Nonindicted 8 corporation. Nonindicted 66 not only demanded Nonindicted 41 to receive full payment of funds from Nonindicted 41, but also demanded Nonindicted 41 to the president of the Social Foundation of the Social Foundation of 41, who was supervised by the tourism policy room under the Vice Minister of Culture and Sports, and the Nonindicted 41-1, who was given the authority of Nonindicted 41, who was given the authority of Nonindicted 2, 41-2, and the Nonindicted Company’s Association.

In full view of the status of the Vice Minister of Culture, Sports and Tourism and the relationship with Nonindicted 6 and Nonindicted 67, the demand made by Nonindicted 2 and Nonindicted 42 for Nonindicted 6 and Nonindicted 66 and demand made by Nonindicted 67 on Nonindicted 42 and Nonindicted 67 may be deemed sufficient to raise a doubt that if the other party does not comply with such demand, it would be at a risk of unreasonable disadvantage in its own or Nonindicted 41’s business activities. On the demand to conclude a service contract with Nonindicted 20 company by creating a sports team, Nonindicted 66 had a substantial pressure on Nonindicted 6’s direction to conclude a service contract with Nonindicted Company 20, and that Nonindicted 2, who was in charge of Nonindicted 6’s request from Nonindicted 6 in the process of signing a service contract with Nonindicted Company 6. However, it was difficult for the Defendant to think that the Nonindicted 2 and Nonindicted 6’s demand was in charge of signing a service contract with Nonindicted 6 Company at the time of signing a contract with Nonindicted 20 Company.

The statements made by Nonindicted 66 and Nonindicted 67 are sufficiently recognizable that there was an implied threat of harm and injury. The majority opinion that does not recognize the notification of harm and injury despite the statement made by such victims goes against the empirical rules from the perspective of average society.

Therefore, the aforementioned demands by Defendant 2 and Nonindicted 42 constitute implicit intimidation that is sufficient to restrict Nonindicted 66 and Nonindicted 67’s freedom to make decisions or interfere with the freedom to enforce decisions.

F. In short, the lower court did not err by misapprehending the legal doctrine on intimidation, etc. as referred to in the crime of coercion, etc. to recognize an implied notice of harm and injury regarding the subject matter and to convicted this part of the crime of coercion.

Therefore, the part of the part of the judgment of the court below that found the Defendants not forced should be reversed, and the part of the judgment of the court below that rendered a single sentence should also be reversed, including the above reversed part and the single comprehensive crime, the part of the ordinary concurrent relation, and the subject matter, and the part of the judgment of the court below that found the Defendants guilty (including the part of the judgment of the court below not guilty in the grounds for appeal). The

As above, I express my opinion with respect to the conclusion of this case, but with different reasons until the conclusion, I express my opinion with respect to the part that differs from the majority opinion.

Justices Jo Hee-de (Presiding Justice)