In light of the basic principles of the Criminal Procedure Act, in a case where a public prosecutor summonss a witness to an investigative agency for examination as a witness on a trial date and after going through an interview with a witness without any special circumstance, and a witness makes a statement unfavorable to the defendant in the court, the public prosecutor may reliable the witness’s statement in court to ensure that the witness did not affect the witness’s legal statement due to meeting or pressure on the witness in the process of the interview before the examination of witness, leading him/her to answer, and rhe/she may not be ruled out that the witness’s statement may be distorted in the court by training or inducing the witness in the course of an unilateral prior interview without the involvement of the court or the defendant, even though the public prosecutor may have an advance interview with the witness as necessary, such as the preparation for the examination of witness, etc., even if the public prosecutor may unilaterally interview the witness in advance without the involvement of the witness, the circumstance that

1. As to the Defendant’s ground of appeal

A. Relevant legal principles

In the latter part of Article 12(1) of the Constitution, the principle of due process is declared in the latter part of Article 12(1) and the right to be tried in Article 27 is guaranteed. To realize this, the Criminal Procedure Act adopts the principle of party-oriented trial and the principle of trial-oriented trial, and the principle of trial-oriented trial that the recognition of facts charged should be based only on the evidence directly examined in the presence of a judge and the presence of a judge. Accordingly, once a public prosecution is instituted, all the authority of criminal proceedings pertaining to the relevant case belongs to the court of the lawsuit that presides over the case, and the suspect who is the subject of investigation exercises his/her right to defend himself/herself as a party to the same party as the prosecutor (see Supreme Court en banc Decision 2009Do7436, Oct. 22, 2009; Supreme Court Decision 2009Do10412, Apr. 28, 2011).

In light of the basic principles of the Criminal Procedure Act, in a case where a public prosecutor summonss a witness to an investigative agency for examination as a witness on a trial date and after going through an interview with a witness without any special circumstance, and a witness makes a statement unfavorable to the defendant in the court, the public prosecutor may reliable the witness’s statement in court to the effect that the witness did not affect the witness’s legal statement due to meeting or pressure on the witness, leading him/her to answer, and cry, etc. during the interview before the examination of witness. Even if the public prosecutor may hold a prior interview with the witness as necessary, it may not be ruled out that the witness’s statement may be distorted in the court because the witness was trained or induced during the unilateral prior interview without the involvement of the court or the defendant, even though the public prosecutor may have an advance interview with the witness, such as the preparation for the examination of witness, etc.

B. Summary of this part of the facts charged and the process of litigation

1) The gist of this part of the facts charged is that the Defendant received a bribe of the same amount as to the arrangement of matters belonging to other public officials’ duties by taking advantage of his status as a public official, from Nonindicted 1’s receipt of a bribe of at least 51,600,345 won in total, including the amount of use of credit card, merchandise coupon, borrowed cell phone mobile phone, mobile phone use cost, prime share, and money, and at the same time, the Defendant received a bribe of the same amount.

2) The first instance court found the Defendant guilty on the following grounds: (a) there is not sufficient proof of the receipt of gift certificates from June 2009 to May 201 for the part of the receipt of bribe within the statute of limitations of 10 years from the date of prosecution; and (b) Nonindicted Party 1’s receipt of payment for the use of the borrowed mobile phone; (c) although the receipt of the payment for the use of the borrowed mobile phone was recognized, the credibility of Nonindicted Party 1’s legal statement related to the check of the revenue sources of the case is denied; and (d) the remainder of the evidence alone lacks proof of business relationship and quid pro quo; and

3) On the other hand, the lower court found the Defendant guilty on the grounds that (i) the credit card user fee, (ii) the user fee of the tea cell phone, (iii) the mobile phone user fee, and (iv) the part of the receipt of money on May 19, 2009, and (v) Non-Indicted 1’s legal statement related to the check-up case and (v) Non-Indicted 1’s statement related to the borrowed mobile phone, and (v) the fact that the Defendant received money or property profit in return for good offices and the criminal intent is recognized; (v) the receipt of merchandise coupons, February 26, 2009, and March 25, 2009, the lower court acquitted the Defendant on the ground that there was no proof of a crime,

C. Judgment of the Supreme Court

However, we cannot accept the judgment of the court below.

1) The record reveals the following facts.

A) On July 26, 2019, the prosecutor applied for Nonindicted Party 1 as witness on the date of the second trial of the first instance court on July 26, 2019, and the first instance court adopted Nonindicted Party 1 as witness on the date of the first trial on August 13, 2019, and conducted the examination of Nonindicted Party 1 as witness on the fifth trial date on September 24, 2019.

However, the prosecutor summoned Nonindicted 1 before the examination of the above Nonindicted 1 was conducted, and had Nonindicted 1 confirm the contents of the prosecutor’s statement.

Unlike the prosecutorial statement, Non-Indicted 1 stated that “In relation to the case of receiving the bribe, which is the case of receiving the bribe, during the examination of the witness in the first instance trial in around 198, Non-Indicted 1, unlike the prosecutorial statement, consulted the defendant about the case of receiving the bribe by asking how he would be the same as how Non-Indicted 2 would be the public prosecution, the defendant also told that he is the person subject to investigation, and immediately after that, the search and seizure of his office was conducted.”

B) On June 17, 2020, the prosecutor applied for the examination of Nonindicted Party 1 as witness again on the first trial date of the lower court, and the lower court adopted Nonindicted Party 1 as witness on the same day and conducted the examination of Nonindicted Party 1 as witness on the second trial date of August 19, 2020.

However, as in the first instance trial, the prosecutor summoned Nonindicted 1 before the examination of the witness on Nonindicted 1 was conducted, and had Nonindicted 1 confirm the contents of the first instance court’s statement and the prosecutor’s statement. At the time of an interview, Nonindicted 1 asked the prosecutor about the matters which he would testify.

After that, unlike the prosecutorial statement, Non-Indicted 1 stated in the lower court’s witness examination that “The process of approving apartment construction implemented by Non-Indicted 3 Co. 1, who had worked for him, was his relative at that time, Non-Indicted 2, who was the director of the department (name omitted), was the principal’s relative at that time, was investigated as acceptance of bribe, and his relative was investigated as a bribe, and the principal made a request to the defendant, and subsequently, Non-Indicted 1 was contacted by the defendant that he was the subject of investigation. At that time, search and seizure was entered into the principal’s office and was investigated about about 48 hours at that time.”

In addition, Non-Indicted 1 stated in the court of first instance that, unlike the prosecutor’s prior interview, Non-Indicted 1’s testimony in relation to the borrowed mobile phone in the examination of witness at the court of first instance, “The borrowed mobile phone did not purely help the defendant or simply lend a mobile phone, separately from the provision of other money, valuables or property benefits.”

2) We examine these facts in light of the legal principles as seen earlier. The prosecutor summoned Nonindicted 1 to the court of first instance and the court of original instance on two occasions before the examination of the witness. In the course of the interview, Nonindicted 1 confirmed not only his own written statement and the written statement in the court of first instance, but also asked the prosecutor about the matters to be testified in the court. In addition, in the examination of the witness immediately following the reversal of the previous written statement concerning the check case and the name cell phone, and in detail, Nonindicted 1’s summons to the prosecutor before Nonindicted 1 made statements in the court of first instance and the court of original instance, it is difficult to exclude the possibility that the prosecutor changed the previous statement to the prosecutor’s statement under the influence of the investigative agency’s reply, pressure, response, and rock, etc., which was affected by Nonindicted 1’s testimony during the interview before the examination of the witness, etc. Thus, it is difficult to acknowledge the credibility of the court of first instance and the court of first instance related to mobile phone name testimony which was found guilty, unless the prosecutor proves that it did not affect Nonindicted 1’s witness’s testimony during the examination.

3) Nevertheless, the lower court found the credibility of Non-Indicted 1’s legal statement related to Non-Indicted 1’s questioning time, reason, method, contents, etc. of the prosecutor’s witness questioning and found the Defendant guilty of the part concerning the receipt of credit card payment, borrowed cell phone usage payment, and borrowed cell phone usage payment among the facts charged of this part of the accepted bribery charges. < Amended by Presidential Decree No. 21484, May 19, 2009>

The court below erred by misapprehending the legal principles on the determination of the credibility of a witness’s testimony made in advance by a prosecutor, thereby adversely affecting the conclusion of the judgment. The ground of appeal assigning this error is with merit.

2. As to the Prosecutor’s ground of appeal

For the reasons indicated in its holding, the lower court determined that the part on the charge of violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (Bribery) with respect to Nonindicted 4 and Nonindicted 5 (hereinafter “Special Crimes Aggravated Punishment Act”) among the facts charged in the instant case was not proven or the statute of limitations has expired, and determined that the Defendant was acquitted on the ground that there was no evidence of crime regarding the receipt of gift certificates among the violation of the Aggravated Punishment, etc. of Specific Crimes (Bribery) related to Nonindicted 1 due to the referral acceptance of bribe, and the delivery of gift certificates among the violation of the Aggravated Punishment, etc. of Specific Crimes Act (Bribery) on February 26, 2009 and March 25, 209. Examining the reasoning of the lower judgment in light of relevant legal principles and records, the lower court did not err by exceeding the bounds of the principle of free evaluation of evidence in violation of logical and empirical rules, or by misapprehending the legal doctrine

3. Scope of reversal

The conviction part among the part of the judgment of the court below against the Act on the Aggravated Punishment of Specific Crimes (Bribery) relating to Nonindicted 1 should be reversed on the grounds as seen earlier, and the acquittal part of the part on the violation of the Aggravated Punishment of Specific Crimes (Bribery) related to Nonindicted 1, which constitutes a blanket and commercial concurrence should also be reversed.

4. Conclusion

Therefore, without further proceeding to decide on the remaining grounds of appeal by the defendant, the part of the judgment below guilty (including the part of acquittal in the grounds of appeal) is reversed, and that part of the case is remanded to the court below for further proceedings consistent with this Opinion. The prosecutor's remaining grounds of appeal are dismissed. It is so decided as per Disposition

Justices Ahn Jae-hee (Presiding Justice)