[2] Whether it is admissible in case where co-defendant's interrogation protocol of co-defendant's co-defendant's co-defendant's protocol of interrogation as evidence is not admitted as evidence (affirmative)

[3] The admissibility of evidence of the suspect interrogation protocol in a case where the prosecutor admitted the authenticity and voluntariness of the suspect interrogation protocol as to the defendant

[4] The degree of holding of the conspiracy in the conspiracy of co-principal

[2] Since co-defendant's protocol of examination of co-defendant's preparation of prosecutor's protocol of examination recognizes its formation and arbitability, it shall be admissible even if the defendant consented to it as evidence.

[3] Where the defendant acknowledged the authenticity and voluntariness of the protocol formation of the suspect interrogation protocol against the defendant prepared by the public prosecutor, and then denied it or submitted the document, it cannot be said that the protocol is inadmissible. When the court recognizes the authenticity of the first statement that recognized the authenticity of formation in light of all the circumstances, such as the contents and form of the protocol and the statement related to the crime in the court of the defendant, etc., the protocol of suspect interrogation is admissible as evidence.

[4] An invitation for a co-principal is to be made by two or more persons to commit a specific criminal act with a co-principal's intent, and to shift one's own will to one's own act by using another's act. However, the decision of the conspiracy is not necessary to decide in detail the specific date, time, place, contents, etc. of the mother's own intention, and it is clear that the agreement has been reached.

1. As to Defendant 1

A. As to occupational embezzlement

According to the reasoning of the judgment of the court below and the judgment of the court of first instance as cited by the court below, the court below acknowledged that the defendant, who was an executive director of the non-indicted 1 corporation, remitted the amount in its judgment to the non-indicted 1 corporation under the name of value-added tax, etc. in connection with the transfer of the shopping mall construction of this case, to the non-indicted 1 corporation on two occasions upon the request of the representative director, and embezzled the amount of KRW 797,865,426 and KRW 365,370,00 each over two occasions while the non-indicted 1 corporation was in custody for the non-indicted 1 corporation. The defendant rejected the defendant's assertion that the above amount was entirely used for the non-indicted 1 corporation for the whole for the purpose of the non-indicted 1 corporation, and rejected the evidence submitted by the attorney that the intention of illegal acquisition is not constituted the crime of embezzlement, and then the court below's fact-finding and judgment are reasonable, and there is no error in the misapprehension of legal principles as to mistake or the facts against the rules of evidence.

B. As to the giving of property in breach of trust

In the crime of giving property in breach of trust, illegal solicitation refers to solicitation against social norms and the principle of trust and good faith. In determining this, the contents of solicitation and the amount of property given in relation thereto, form, and integrity of transactions, which are protected legal interests of this crime, should be comprehensively considered (see Supreme Court Decision 91Do413, Jun. 11, 1991).

According to the reasoning of the judgment of the court below and the judgment of the court of first instance cited by the court below, the court below acknowledged that the defendant made a solicitation to the co-defendant 1, who is the working manager of the above non-indicted 2, who acquired the shopping mall construction of this case, to the effect that "the price for the acquisition of the above shopping mall is set favorably to the non-indicted 1," and paid 50,000,000 won under the name of the case expenses. In full view of all the circumstances indicated in the records, such as the amount of the property of this case, the contents of the affairs in charge by the co-defendant 1, and the circumstances surrounding the delivery of the property, the above solicitation constitutes "illegal solicitation" for the crime of giving property in breach of trust. In light of the records, the court below's fact-finding and the judgment in accordance with the above purport is reasonable, and there is no error of law by misunderstanding facts against the rules of evidence or by misunderstanding the legal principles concerning

C. Regarding the issue of unfair sentencing

The argument that a sentence of less than 10 years is more severe in this case for which the defendant was sentenced to imprisonment shall not be a legitimate ground for appeal.

Therefore, all of the grounds of appeal are without merit.

2. As to Defendant 2

According to the reasoning of the judgment of the court below and the judgment of the court of first instance cited by the court below, the court below found Defendant 1 and Defendant 2 guilty on the facts charged that " around May 18, 1993, he conspireds to give a bribe to co-defendant 1, who is a public official in charge of the value-added tax of the above non-indicted 1 corporation, and offered a bribe in relation to the duties of the above non-indicted 1,00,000 won in the above non-indicted 1' in the above non-indicted 1, in accordance with the order of the defendant 2, the non-indicted 1, who is parked in the back of the non-indicted 1, Nam-gu, Namcheon-gu, Busan pursuant to the order of the defendant 2, the non-indicted 1's non-indicted 1's non-indicted 1's non-indicted 1's non-indicted 1's non-indicted 1's non-indicted 1,000,000 won."

In addition, the protocol of examination of co-defendant prepared by the public prosecutor is admissible even if the co-defendant consented to the establishment and arbitrity of the protocol as evidence (see Supreme Court Decision 91Do346, Jun. 22, 1993). In case the defendant acknowledged the authenticity and arbitrity of the protocol of examination of the defendant prepared by the public prosecutor, and then rejected it or submitted the document, it cannot be said that the evidence of the protocol is not always admissible. The court's initial statement that recognized the authenticity of the protocol is credibility in light of all the circumstances, such as the contents and form of the protocol and the statement related to the crime in the court of the defendant's court, and it cannot be admitted as evidence if the initial statement of the court below acknowledged the authenticity of the protocol of examination of the defendant as evidence (see Supreme Court Decision 94Do1318, Aug. 9, 194; Supreme Court Decision 2000Do1346, Jun. 12, 199).

In addition, the public offering for the co-principal shall consist of two or more persons to commit a specific criminal act with their own intent, and shall move one's own will by using another person's act. However, the decision of the public offering shall not be required to make a detailed decision in detail on the mother's specific date, time, place, contents, etc., and it is found that the agreement has been reached as seen above (see Supreme Court Decisions 94Do1832 delivered on October 11, 1994, 92Do327 delivered on March 23, 1993, etc.). Thus, in this case, although the court below did not express the mother's specific contents in detail, the defendant and the above defendant were established with the intent to realize the crime of offering of this case, as long as the judgment of the court below was stated to the purport that the agreement between the defendant and the above defendant 1 with the intent to realize the crime of offering of this case was made, it shall not be deemed to have any error in the misapprehension of legal principles as to the omission of a mother or omission of reasons.

On the other hand, the argument that a sentence of less than 10 years is more severe in this case where the defendant was sentenced to imprisonment is not a legitimate ground for appeal.

Therefore, all of the grounds of appeal are without merit.

3. Therefore, all appeals are dismissed, and some of the detention days after each appeal shall be included in each original sentence. It is so decided as per Disposition by the assent of all participating judges.

Justices Park Jong-ho (Presiding Justice)