[2] In a case where payment is made in the form of salary in accordance with an employment contract under which the consideration for mediation of matters belonging to the duties of a public official or an executive or employee of a financial institution was made formally under the Act on the Aggravated Punishment, etc. of Specific Crimes and the Act on the Aggravated Punishment, etc. of Specific Economic Crimes, the amount of mediation acceptance and necessary confiscation and collection (i.e., the amount of actual payment

[2] In light of Articles 3 and 13 of the Act on the Aggravated Punishment, etc. of Specific Crimes (hereinafter “Special Crimes Act”) and Articles 7, 10(2) and 10(3) of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (hereinafter “Special Economic Crimes Act”), in a case where the intermediary recipient pays the intermediary receipter the amount in the form of benefits based on an employment contract concluded formally for the arrangement of matters belonging to the duties of a public official or an executive officer or employee of a financial institution, the intermediary receipter shall be deemed as the actual amount except for the nominal wage, but the withheld earned income tax, etc., and only the above amount shall be confiscated and collected as “property acquired by the criminal by committing a crime as prescribed in Article 3” or “the money or other profit received by the criminal in case of Article 7” as “the money or other profit received by the criminal in case of a special crime” as stipulated in Article 10(2) of the Special Economic Crimes Act.

1. As to the grounds of appeal Nos. 1 and 2

A. It is against the legal structure of the current Criminal Procedure Act aiming at the principle of party, the principle of public trial-oriented principle, and the principle of directness, and it is against the fundamental right guaranteed by Article 27 of the Constitution, i.e., the right to a trial where all evidential materials are investigated and stated in the presence of a judge and the defendant is given an opportunity to attack and defend against them. Thus, such written evidence is inadmissible unless the defendant agrees that it can be admitted as evidence (see, e.g., Supreme Court en banc Decision 99Do1108, Jun. 15, 200). This legal principle applies to the case where a prosecutor summonss a witness who has already finished testimony at a preparatory hearing or during a public trial on a public trial date to summon him/her to the effect that he/she is favorable to the defendant, and then prepares a written statement to reverse the contents of his/her testimony instead of preparing it.

In light of the above legal principles and the records, Nonindicted 1’s written statement shall be prepared and submitted to the effect that Nonindicted 1 was summoned by the prosecutor immediately after the testimony was made on the date of the trial of the first instance, and that he reversed part of the testimony at the court of first instance as to the route between ○○ hotel and driving on September 5, 2008. In light of the content and the process of preparation, etc. of the written statement, it is not different from allowing the witness who made a testimony favorable to the Defendant on the trial date to reverse the contents of the previous testimony at the prosecutor’s investigation and to make the written statement to the effect that he reversed the contents of the testimony. Thus, insofar as the Defendant did not agree to admit

Therefore, the court below's adoption of the non-indicted 1's written statement without admissibility as evidence of guilt is illegal. However, according to the remaining evidence duly adopted by the court below, it is sufficient to recognize that the defendant received non-indicted 2 from ○○ hotel on September 5, 2008 or KRW 1,01,60,000,000. Thus, the court below's conclusion that found the defendant guilty of this part of the facts charged is just, and the above error by the court below does not affect the conclusion of the judgment.

B. The degree of formation of a conviction in a criminal trial must be such that there is no reasonable doubt. However, it is not required to exclude all possible doubts, and rejection by causing a suspicion that there is no reasonable ground for the probative value of evidence shall not exceed the bounds of the principle of free evaluation of evidence (see, e.g., Supreme Court Decision 94Do1335, Sept. 13, 1994; 2007Do10728, Mar. 14, 2008). The credibility of a witness’s statement shall not be readily denied solely on the grounds that the witness’s statement is consistent in its major parts (see, e.g., Supreme Court Decision 94Do1335, Sept. 13, 1994).

Examining the facts in light of the aforementioned legal principles, the court below rejected the defendant's on-site absence assertion that the statement of the non-indicted 2, 1, and 3 was not received in detail at ○○ hotel on September 5, 2008, on the ground of the statements of the non-indicted 2, 1, and 3, the defendant received 1.1 billion won in cash from non-indicted 2 on April 16, 2008, and the non-indicted 2 on September 5, 2008, and the defendant received 1.1 billion won in cash from ○○ hotel on September 5, 2008, and the defendant did not receive money and valuables at ○○○ hotel on September 5, 2008. In light of the aforementioned legal principles and records, the court below's aforementioned measures and judgment are justified, and there were no errors in the misapprehension of legal principles or principle of free evaluation of evidence, or in violation of the principle of free evaluation of evidence, as alleged in the ground of appeal.

2. As to grounds of appeal Nos. 3 and 4

Where the title of receiving money and valuables is limited to giving and receiving a person who acts as a broker, the crime of receiving money and valuables is not established. However, it is not established only to specify the counterpart of arranging, and make a direct solicitation and intermediation to him/her, as the pretext of receiving money and valuables, but also to accept money and valuables, etc. under the pretext of giving and receiving solicitation and intermediation through an intermediary who can exercise influence, etc. as well as not specifically specify the counterpart of arranging for solicitation, the crime of receiving money and valuables may be established (see Supreme Court Decision 2002Do3600, Jun. 28, 2007).

In addition, considering the nature of the offense charged, it is sufficient to specify the facts constituting the cause of the indictment by stating the date, time, place, method, purpose, etc. to the extent that it can be distinguished from other facts charged. Even if some of the facts are unclear, if it is possible to specify the facts charged along with the stated other matters, and if it does not interfere with the exercise of the defendant's right to defense, the validity of the indictment does not affect (see Supreme Court Decision 2000Do2968, Oct. 26, 2001, etc.).

On the other hand, Article 7 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (hereinafter "Special Economic Crimes Act") means the legislative purpose of securing the indeterminate purchase of duties by prohibiting any act of receiving money or goods by participating in the duties and receiving money or goods from the executives or employees (Article 5) or any other act of receiving money or goods from the executives or employees in relation to the duties of the state's economic policy and the national economy due to the public nature of financial institutions under Article 2 subparagraph 1 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (hereinafter "Special Economic Crimes Act"), and the legislative purpose of securing the indeterminate purchase of duties is to not only to transfer a certain matter to the other party as it is intended, but also to make a solicitation on behalf of the other party, and the act of arranging for the affairs is included in cases where the act of arranging for the affairs is subject to past intention or legitimate duties, and if it has received money or goods under the pretext of such good offices, the above crime is established regardless of which act of arranging was actually committed (see, e.g., Supreme Court Decision 2008Do1737, Jan.

Whether there is a quid pro quo relationship between a broker and an employee of a financial institution, shall be determined by comprehensively taking into account all the circumstances, such as the contents of the relevant good offices, the relationship between the broker and an employee, the degree of profit, the details and timing of receipt of profit, etc., and where there is a comprehensive and comprehensive quid pro quo relationship between a broker and an employee, and where the nature of the quid pro quo for other acts is indivisible with the money received by the broker and the money received by the broker, it is reasonable to deem that the entire quid pro quo has the nature of the quid pro quo for an indivisible good act (see Supreme Court Decision 2006Do7067, Jun. 12, 2008).

Examining the above legal principles and the evidence duly adopted by the court below in light of the records, the court below, based on its stated reasoning, specified the facts charged to the extent that the prosecutor could be distinguished from the facts charged by pointing out the date, time, place, method, purpose, etc. of each of the above facts charged. The defendant merely did not introduce the non-indicted 4, who is a third party to arrange and act on behalf of the officers and employees of the Korea Development Bank, as the former Vice-Governor of the Korea Development Bank, through Non-indicted 4, an intermediate intermediary material in which he can exercise influence over the officers and employees of the Korea Development Bank. The defendant's act of mediating the industrial bank and the defendant's act of arranging the industrial bank 2.61 billion won received by the defendant, all and a comprehensive consideration relation between the defendant's act and the defendant's act of arranging the Korea Development Bank 2.61 billion won and the defendant's act of mediating the Korea Development Bank 2.6 billion won include some nature as consideration for other assistance in the act of arranging the Korea Development Bank 3.

In addition to the precedents regarding the above legal principles, the Supreme Court Decision, which the defendant delivered in the ground of appeal, differs from this case, is inappropriate to be invoked in this case. 3. Regarding the grounds of appeal Nos. 5 and 6

The crime of acceptance of good offices under Article 3 of the Act on the Aggravated Punishment, etc. of Specific Crimes (hereinafter referred to as the "Special Crimes Act") shall not be established only where public officials in charge are specifically specified and directly solicited or mediated to them as the pretext of receiving money and valuables, but also where money and valuables are received under the pretext of accepting solicitation and good offices through intermediarys that can exercise influence, etc., as well as where public officials to be solicited are not specifically specified, and intermediarys are not necessarily required to be public officials, and even if public officials are not required to be public officials, they shall not necessarily belong to their duties (see Supreme Court Decision 2002Do3600, Jun. 28, 2007, etc.).

In light of the above legal principles and records, even if Nonindicted 2 did not explicitly request the mediation of the public officials concerned, such as the Board of Audit and Inspection, to the defendant, through Nonindicted 5, even though the court below did not request the mediation of the public officials concerned, the defendant requested the mediation of the public officials related to the reclamation dispute of public waters. The defendant not only consented to the mediation request of Nonindicted 2, but also led to the mediation activities through other government officials with influence of Nonindicted 6 and Nonindicted 6, an intermediate material upon the request of Nonindicted 2, and the maintenance of the judgment of the court of first instance which judged that the mediation request and the consent of the defendant were made with respect to the special tax investigation with the fourth investigation of the Seoul Regional Tax Office in the Seoul Regional Tax Office, is just and reasonable. There is no error in the misapprehension of legal principles as to the establishment of the crime of mediation and acceptance, or in violation of the principle of free evaluation of evidence, as otherwise alleged in the

4. As to ground of appeal No. 7

In order to establish the crime of acceptance of good offices, matters to be mediated are matters belonging to the duties of public officials, officers and employees of financial institutions, and the fact that the name of acceptance of money and valuables, etc. is related to the arrangement of such matters should be specified to a certain extent. It cannot be deemed that the crime of acceptance of good offices is established merely on the basis of the fact that the provider of money and valuables, etc. has received money and valuables, etc., to the extent that he/she received money and valuables, etc. with such expectation to the extent that he/she would not receive any assistance or incur any loss if he/she appears well to the recipient of the money and valuables, etc., and that the recipient of the money and valuables, etc. also delivered the money and valuables, etc. with such expectation (see Supreme Court Decision 2004Do5655 delivered on Nov.

In light of the above legal principles and the records, the court below, based on the circumstances in its holding, did not err in the misapprehension of legal principles as to good offices or duties of executives and employees of a specific financial institution, and there were specific requests and consents for good offices of the Board of Audit and Inspection and a large number of financial institutions in relation to the public waters reclamation dispute on July 2008. The wages and merchandise coupons paid after July 2008 by non-indicted 2 shall not be deemed as money and valuables provided in a limited expectation and they cannot be deemed as money and valuables provided in the law of free evaluation of evidence in light of the legal principles as alleged in the ground of appeal, since there were specific requests and consents for good offices or merchandise coupons for good offices of specific public officials and in relation to the public waters reclamation dispute, it cannot be deemed as money and valuables granted after December 2009. The court below did not err in the misapprehension of legal principles as to good offices or interests among the parties, good offices and profit providers, the process and timing of giving and receiving benefits, etc., and there were no errors in the judgment of free evaluation of evidence.

5. As to ground of appeal No. 8

It is reasonable to interpret that matters belonging to the duties of officers and employees of financial institutions under Article 7 of the Special Economic Crimes Act refer to cases or affairs of all persons except for themselves. However, in case where the defendant was engaged in street activity with money from the representative director of a corporation on the pretext of a request, and without any involvement in the ordinary affairs of the corporation for the convenience of its activities, he/she received the money under the pretext of solicitation while completing the registration of the corporation's director in a formal manner without any involvement in the ordinary affairs of the corporation, and using the corporation's director as a director, etc. for the convenience of its activities, he/she shall not be deemed to be the defendant's own affairs (see Supreme Court Decision 200Do357, Jun.

"Good offices" as referred to in Article 7 of the Act on Special Cases concerning the Punishment, etc. of Specific Economic Crimes refers to "an act of arranging or promoting convenience between a certain person and the other party with respect to a certain matter". The act of good offices is included in cases where the act of good offices is subject to legitimate duties. If money or other valuables are received under the pretext of good offices, regardless of which good offices are actually conducted, the above crime is established (see Supreme Court Decision 2010Do6490, Sept. 30, 2010).

In light of the above legal principles and the records, the court below's decision maintaining the judgment of the court of first instance which judged that the crime of Article 7 of the Special Economic Crimes Act is established regardless of whether the defendant actually arranged the lending of one bank is not a constituent element of the crime of intermediary taking over the lending, and it is just to affirm the legal principles concerning "the business of another person", and there is no violation of the principle of free evaluation of evidence in violation of logical and empirical rules, and there is no violation of the principle of free evaluation of evidence against the law of logic and experience.

6. As to ground of appeal No. 9

Article 3 of the Aggravated Punishment Act provides that "any person who receives, demands or promises any money and valuables or benefits concerning an arrangement of matters belonging to the duties of a public official shall be punished by imprisonment with prison labor for not more than five years or by a fine not exceeding 10 million won." Article 13 of the Aggravated Punishment Act provides that "any property acquired by a criminal by committing a crime under Article 3 or 12 shall be confiscated and, if confiscation is impossible, the equivalent value thereof shall be additionally collected." Meanwhile, Article 7 of the Aggravated Punishment Act provides that "any person who demands or promises to receive, demands or promises any money and valuables or other benefits in connection with an arrangement of matters belonging to the duties of an officer or employee of a financial company, etc. or any third person who demands or promises to give them shall be punished by imprisonment with prison labor for not more than five years or by a fine not exceeding 50,000 won." Article 10 (2) of the Aggravated Punishment Act provides that "in case of a criminal or an extenuating circumstance under Articles 5 through 7, and 9 (10 (3) of the Act or other benefits shall be confiscated.".

In full view of Articles 3 and 13 of the Aggravated Punishment Act and Articles 7, 10(2), and 10(3) of the Aggravated Punishment Act, and the legislative purport thereof, in cases where the intermediary recipient has paid the intermediary recipient the price for the arrangement of matters belonging to the duties of a public official or an officer or employee of a financial institution in the form of benefits based on an employment contract which has been concluded formally, the intermediary recipient’s acceptance amount received by the intermediary recipient shall be deemed as the actual amount, excluding the nominal wage, but the withheld wage and salary tax, etc., and only the above amount shall be confiscated and collected as “the pertinent property acquired by the criminal for committing the crime of Article 3” under Article 13 of the Aggravated Punishment Act or “the money and valuables or other benefits received by the criminal in the case of Article 7 of the Aggravated Punishment Act” under Article 10(2) of the Aggravated Punishment Act.

Nevertheless, the lower court determined that not only KRW 283,89,230, which was actually received by the Defendant based on an employment contract concluded formally with Nonindicted Co. 7 in return for the mediation of public waters reclamation dispute, tax investigation and the mediation of loans by financial institutions, but also KRW 400,000,000,000,000,000 won including the withheld wage and salary income tax, etc., was established. In so doing, the lower court collected KRW 3.21,66 million in total ( KRW 2.61,60,000,000 + KRW 2.61,06,000,000 + KRW 2.40,000,000,000 won in the name of the Korea Development Bank Work Arrangement + KRW 3.2 billion,000,000,000,000

7. Conclusion

Therefore, among the judgment of the court below, the guilty part among the crimes of mediating public waters reclamation dispute, conducting tax investigation and violating the Act on Special Cases concerning the Receipt of Money and Valuables under the pretext of loan brokerage, and violation of the Act on Special Economic Crimes shall be reversed. Since the court below recognized the remaining guilty part as concurrent crimes under the former part of Article 37 of the Criminal Act and sentenced to a single punishment, the whole guilty part of the judgment of the court below shall be reversed, and the case shall be remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices.

Justices Shin Young-chul (Presiding Justice)