[2] The case reversing the judgment of the court below which rejected the credibility of the statement of the mineer who offered a bribe on the ground of incomplete hearing

[2] The case reversing the judgment of the court below which rejected the credibility of the statement of the mineer who offered a bribe on the ground of incomplete hearing

1. The facts charged against Defendant 2 and the summary of the facts charged for offering of a bribe to Defendant 1

From January 30, 2001, Defendant 2 worked as the Director of the Busan Customs Support Division (Grade V), who was engaged in the inspection for customs clearance of exported and import goods and the management of bonded warehouses, etc. from the Busan Customs Office located in the Nam-gu, Busan. On or around April 21, 2001, Defendant 2 provided Co-Defendant 1 with a bribe of KRW 3 million as to official duties of the public official by providing Co-Defendant 1 with a bribe of KRW 2,00,000,000,000,000,000,000,000,000,000,000,000,000,000,000,0000,000,000,000,000,000,0000,000,000,000,000,000,000,00.

2. Prosecution by Defendant 2

Defendant 2, at the first prosecutor's office where an investigation was commenced, did not receive the cashier's checks from Defendant 1 as a bribe, and it was found that Defendant 1 used two of 30,000 won of 10,000 won cashier's checks, which Defendant 1 argued as a result of the check tracking, and that Defendant 2 received two of 2,80,000 won.

3. Summary of the judgment below

The court below rejected Defendant 1’s statement that corresponds to the facts charged for the following reasons while finding Defendant 2 guilty of the acceptance of bribe and the offering of bribe only for KRW 280,000,000, and judged Defendant 2 not guilty of the remainder of KRW 2.8 million.

A. Defendant 1 consistently stated that he issued 30,000 won cashier’s checks to Defendant 2 by putting 100,000 won in an envelope from the prosecution to the date of the fifth trial of the first instance trial, which commenced a consolidated trial after the addition of the above facts charged, but Defendant 1 stated that he issued only 20,000 won to Defendant 2 from the interrogation of Defendant 2 on the date of the seventh trial of the first instance trial and the date of the eighth trial, and that the remaining 28 cashier’s checks were returned to Nonindicted 1, but there is no consistency in the statement regarding the amount of bribery, such as testimony that he would again deliver 3 million won to Defendant 2 on the date of the first instance trial of the first instance trial.

B. As to the source of funds that Defendant 1 delivered KRW 3 million to Defendant 2, Nonindicted 1 stated that: (a) the employees of Dong 1’s office transfer KRW 5 million to one light bank account; (b) Defendant 1 withdraws KRW 3 million out of his office’s cashier’s checks to Defendant 2 on April 20, 201; (c) Defendant 1 sent KRW 2 million to Nonindicted 1, 300,000,000 to the above account; (d) Defendant 1 stated that the bank’s cashier’s checks were issued to Nonindicted 1, 300,000 won; and (e) Defendant 1 and the bank’s cashier’s checks were issued to Nonindicted 60,000 won prior to the remittance; and (e) Defendant 1 and the bank’s cashier’s checks were returned to Nonindicted 1,300,000 won out of the total amount of KRW 60,000,000,000,000 won.

C. On June 20, 2001, Defendant 1 was summoned to the prosecution for the charge of the crime of bribery of this case from the 11st of the same month, which was before being charged with the crime of bribery of this case, and was investigated by the prosecution. In light of the fact that Defendant 1 had been urged by Defendant 1 while the prosecutor had secured the witness’s statement that Defendant 1 had already issued 1 million won check to Defendant 2, Defendant 1 could not be ruled out that Defendant 1 actually issued only 100,000 won cashier’s check to Defendant 2 and issued 28 copies of the remaining 10,000 won cashier’s check to Defendant 2, but it could not be ruled out that all 30,000 won cashier’s checks were delivered to Defendant 2.

4. Judgment of the Supreme Court

However, we cannot agree with the judgment of the court below that rejected the defendant 1's statement at the prosecutor's office of the first instance trial and the first instance trial of the first instance trial (hereinafter referred to as "defendant 1's statement"), which correspond to the facts charged, for the following reasons.

A. Case history

According to the records, ① Defendant 1, who was aware of her kind of checks, was designated at the office of customs office 74,052 for children imported from China, as the goods subject to control by Defendant 2, and asked Defendant 2 to take prompt customs clearance by misrepresenting himself, and Defendant 2 immediately shipped the above goods to the office of special guard, and delivered the cashier’s checks to Defendant 2, and ② Defendant 1 was to be issued 3 million won for the offense of arrest during the investigation due to suspicion of fraud, etc., and Defendant 2 did not want to have the above 300,000 won issued the checks to Defendant 2, and Defendant 2 did not want to have the above 100,000 won to have the above 300,000 won issued the cashier’s checks to Defendant 2, and Defendant 1 and the remaining 100,000 won were presented during the process of investigating Defendant 2’s delivery and receipt of the cashier’s checks from 00,000 won.

B. The court below's determination of admissibility or credibility of a witness's statement made by a person who is under investigation due to a false misunderstanding of facts is as suggested by the court below, with due care, whether it is not a false statement made from the motive to join the investigator's intent in order to obtain a favorable disposition in a separate case. However, where his statement conforms to objective financial data to a considerable extent as in this case, the court below's determination of admissibility or credibility should not be dismissed without special circumstances.

However, as stated in the judgment of the court below, Defendant 1 consistently stated that the investigative agency delivered KRW 3 million to Defendant 2 at the hearing of the first instance, and Defendant 2 made a statement at the trial of the court of first instance, and the court of first instance rejected the part of KRW 2.8 million, and Defendant 2 made a false statement on Defendant 2’s statement on the 7th trial date and the 8th trial date; however, Defendant 1 again reversed this on the 11th trial date and made a statement with the same contents as the initial one, and according to the records, Defendant 1 maintained the statement that he delivered KRW 3 million to the court of first instance.

On the other hand, according to the result of tracking the financial data, it can be found that on April 20, 2001, Non-Indicted 1 remitted KRW 5 million to Defendant 1 as stated by Defendant 1, and on the same day, it was confirmed that the cash amount of KRW 8.1 million and KRW 3.0 million cashier's checks were withdrawn, so the source of the bribe fund of KRW 3 million has been clearly proved. In regard to the place of using the cashier's checks, two of 30,000 except those used by Defendant 1, among 36, are confirmed that Defendant 2 was used in the automobile maintenance business office and the remaining 28,000 won were not presented until the original trial. If this situation is possible, it is consistent with Defendant 1's statement to the extent that it is possible to trace the financial data.

C. On April 20, 2001, the court below held that Defendant 1 did not remain as much as KRW 3 million if Defendant 1 deducted the part which was confirmed by the place of use from the withdrawn amount. The court below held that Defendant 1 returned KRW 2 million out of the aforementioned withdrawn amount to Nonindicted 1, or that Defendant 1 returned KRW 28,000 to Nonindicted 1, or that Defendant 1 returned 28,000 won cashier’s checks to Defendant 2 during the 11th trial date, the second trial date, and the third trial date, it reversed that Defendant 1 himself issued only two cashier’s checks to Defendant 2 and stated that the remaining 28 cashier’s checks were returned to Nonindicted 1, and that Defendant 1 returned KRW 2 million or KRW 2.8 million from the above withdrawn amount, if the check was returned to Nonindicted 1, the court below should have deliberated and decided that Defendant 1 did not return it up to 200,000,000,000 won.

D. In addition, the motive for Defendant 1 to issue a cashier's check to Defendant 2 was that Nonindicted 1's Category 74,052 of the revenue of Nonindicted 1, which was at the time of release withholding (the total dutiable value indicated in the copy of the import declaration bound in investigation records, is KRW 37,512,086, which is the total taxable value indicated in the copy of the import declaration bound in investigation records, so the current tax would be much higher than that of the current tax) can be immediately shipped out, and the circumstance that Defendant 1 did not present a payment proposal by March 15, 202 nearest one year from the date of withdrawal of 28 cashier's checks should also be taken into account.

E. Ultimately, the lower court did not examine whether the check was returned to Nonindicted Party 1 from among 28 copies of the cashier’s checks withdrawn by Defendant 1 after investigating Nonindicted Party 1, or 2 million won of the withdrawn checks (including 12 copies or more of the withdrawn checks in the speed of KRW 2 million, considering the composition ratio of cash and checks), and if Nonindicted Party 1 was returned, it did not consider why the check was not presented until now. In so doing, it erred by failing to exhaust all necessary deliberations or by misapprehending the facts against the rules of evidence to reject the credibility of Defendant 1’s statement on the premise that Defendant 1 returned KRW 2 million of the withdrawn checks to Nonindicted Party 1, or KRW 2.8 million to Nonindicted Party 1. Therefore, the Prosecutor’s ground of appeal assigning this error is with merit.

5. Therefore, the part of the judgment below against Defendant 2 and the part concerning the crime of offering of a bribe against Defendant 1 should be reversed. The remaining criminal facts against Defendant 1 are concurrent crimes with the crime of offering a bribe and the crime of offering a bribe under the former part of Article 37 of the Criminal Act, and this part of the judgment below against the Defendants cannot be reversed, and it is so decided as per Disposition by the assent of all participating Justices on the bench that all of the judgment below against the Defendants and the case is remanded to the court below for a new trial and determination.

Justices Park Jae- Jae (Presiding Justice)