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무죄
(영문) 서울고등법원 1993. 4. 28. 선고 89재노2 판결

[업무상군용물횡령,업무상횡령,뇌물수수,뇌물공여][판례집불게재]

Defendant, Appellant

A

Defense Counsel

B

Judgment Subject to Judgment

The High Military Court Decision 83No47 delivered on September 23, 1983

Judgment of the lower court

On June 17, 1983, the General Court of the Navy of the Second Navy of the Navy, 83Da17 decided June 17, 1983, and confirmation of mitigation of jurisdiction; and

Text

The judgment of the court below is reversed.

A defendant shall be punished by imprisonment for one year.

The number of detention days prior to the pronouncement of the judgment below shall be included in the above sentence.

Seized Rabter (No. 6) and 2 lubrics (No. 8,9) shall be confiscated.

738,000 won shall be additionally collected from the defendant.

Of the facts charged in the instant case, the Defendant conspired with C on December 20, 1981 from around 15:00 to February 15:00 on December 10, 1982, sold and embezzled the 4drum (800 liters) of military gasoline at will from the fuel supply base of the affiliated fleet to D on four occasions (each of the crimes listed in the annexed list of crimes in paragraph (1) at the time of original adjudication) and the Defendant sold from around 20:0 on the first day of February 1982 to February 6:00 on the date of February 19, 1983 to around 2:0,000 that were kept on duty at the affiliated fleet warehouse and the 2:4-class warehouse, and from February 19, 1983 to February 15:00, 1982, each of the crimes described in the annexed list 3(2) to 3(1) through 28) of the judgment of innocence

Reasons

1. Summary of grounds for appeal;

(1) The court below found the defendant guilty on the ground that the defendant had no authority to send a bribe to the defendant 2 for 10 days on the ground that he had sold military supplies to 3.5 days on the ground that he had no authority to do so, and that the defendant had no authority to do so on the other 2. The court below found the defendant to have been guilty on the ground that he had no authority to do so on the ground that he had been 1 to 3.4 days on the ground that he had no authority to do so on the other 4. The court below found that the defendant had no authority to do so on the part of 1 to 4.5 days on the defendant 2. The court below affirmed that the defendant had no authority to do so on the part of 1 to 3.4 days on the defendant 4. The court below found that the defendant had no authority to do so on the part of 1 to 4.4 days on the ground that he had no authority to do so on the part of 2. The court below's ruling that the defendant had no authority to do so on the remaining 14.

In light of the above facts, the court below found the facts of the crime at the time of the original adjudication without any evidence, or found the defendant guilty with false evidence which cannot be trusted. In the end, the court below erred in the misunderstanding of facts or violation of the rules of evidence.

2. Determination on the legitimacy of the grounds for appeal

A. First of all, since the above arguments of the defendant except (2) and (3) (4) (6) (7) (7) (8) (9) are met, the defendant's assertion under subparagraph (5) of Article 420 of the Military Court Act refers to official documents or other reliable evidence; statements and witness testimony of private person do not fall under such evidence; the value of evidence can be objectively reduced compared to other evidence; the new discovery refers to evidence that the defendant did not know the existence of such fact or could not be submitted even if he knew of such fact during the proceedings of the final judgment; since the defendant's testimony cannot be seen as being newly prepared by the above 3-27, 30-34, 40-47 (the fact that each private person prepared) and the witness's testimony at the trial cannot be seen as being a new evidence or evidence newly prepared by the court below for the purpose of preparing new evidence or evidence evidence; the defendant's testimony at the trial cannot be seen as being a new evidence or evidence newly prepared by the court below for the purpose of preparing new evidence or evidence evidence.

B. According to the following reasoning of the defendant's assertion of Paragraph (2) above, witness E purchased two edible milk from the defendant on June 17, 1983 during the second trial of the court below on February 17, 1982, as well as the purchase of two edible milk from the defendant on February 2, 1982 at the original trial of the court below on five occasions as stated in Paragraph 2-A (1) of the attached Table 2, and witness D of the court below testified that he purchased edible milk and white milk on five occasions as stated in Section 3-8 of the defendant's list of crimes in the attached Table 1 at the time of original trial of the court on the same trial date. The court below erred in the judgment of the court below as stated in Section 1 (1) of the attached Table 1 at the time of original trial of the court below on the 10th trial of the court below on the 10th trial of the above defendant's testimony as evidence of each of the above 10th trial of evidence and evidence 10th trial of the above 7th trial.

C. Meanwhile, according to the result of the examination of evidence of the defendant's argument as to the above paragraph (10) above, the case records and the party members' evidence of the criminal proceedings against the above I, the military security unit I, from around 03:00 on March 9, 1983, on the ground that the defendant does not confession the embezzlement of military supplies at the time of original trial, he was detained in the underground room of the military security unit and walking the body such as drinking face several times during about one week from around 1, 1983, he was compelled by the military judicial police officer to use it as evidence, and the defendant continued to have been compelled to use it as evidence at the time of the examination of the suspect examination of the defendant, and the defendant did not appear to have been compelled to use it as evidence by the military judicial police officer, and the defendant cannot be admitted as evidence for conviction on April 14, 1983, and the defendant cannot be admitted as evidence.

3. Determination of the grounds for appeal against each crime

A. Regarding each of the crimes listed in the separate sheet of crime in paragraph (1) (1) and each of the crimes listed in the separate sheet of crime in paragraph (2) (1) at the time of original adjudication, and the crime listed in the separate sheet of crime (2) 3 through (8) at the time of original adjudication

(1) The Defendant admitted each of the above criminal facts to the investigative agency and the court below. However, as seen earlier, each protocol of examination of the Defendant’s suspect against the Defendant is inadmissible.

(2) On the other hand, as seen earlier, each witness E and D’s testimony at the original trial was revealed to be a perjury, and thus, it cannot be trusted. Each statement at the investigative agency on these statements cannot be trusted in light of the above facts (as seen earlier, the witness E and D’s testimony at a party member).