(b) Violation of the Aggravated Punishment Act;

(c) Violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes;

2. B

1. In order to be recognized as embezzlement of Defendant A’s violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Embezzlement), the intent of the custodian of another’s property to dispose of the property as his own property without authority should be recognized, and this does not change if the custodian of the company’s non capital uses the funds. In addition, with respect to the use of the funds, whether the main purpose of the use of the funds can be deemed to be the use of the funds for the personal purpose of the Defendant, or whether the existence of the intent of unlawful acquisition can be recognized, by comprehensively taking into account the time, place, and method of the use of the funds, the time, circumstance, and consequence of the use of the funds, etc. (see, e.g., Supreme Court Decisions 2007Do4784, Feb. 26, 2009; 2009Do6634, Apr. 15, 2010). Meanwhile, the entry of the facts charged should be identified by specifying the date, place, and method of the crime (Article 254).

The lower court determined that Defendant A’s legal manager of D Co., Ltd. (hereinafter “D”) used USD A for the purpose of the company, such as disbursing a considerable amount of USD D’s amount among USD D’s revenue from expenses related to construction at Libya, etc., and there is insufficient evidence to acknowledge the fact that the Plaintiff used USD A for the personal purpose, such as personnel management, etc. of the branch persons. Even if USD D’s revenue is KRW D’s secret, it cannot be deemed that Defendant A had an intention of unlawful acquisition since it was delivered the USD A’s revenue as a cost to maintain dignity, etc. Furthermore, the lower court found Defendant A’s non-concept as being possessed at the time of retirement from D’s legal manager around June 2005, and that the prosecutor did not prosecute the amount of USD D’s gold holding itself for the purpose of embezzlement and not for any other purpose than embezzlement from January 201 to May 5, 2005. The lower court found Defendant A guilty of this part of the facts charged.

Examining the reasoning of the lower judgment in light of relevant evidence and the legal principles as seen earlier, the lower court’s above.

The judgment is acceptable, and there is no violation of law by misapprehending the legal principles regarding the recognition criteria of unlawful acquisition and intent, or by exceeding the bounds of the principle of free evaluation of evidence in violation of logical and empirical rules, and thereby affecting the conclusion of the judgment. The ground of appeal pointing this out is rejected.

2. In a criminal trial for the offering of a bribe by Defendant A and the violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (Bribery) by Defendant B, the establishment of criminal facts must be based on strict evidence with probative value, which leads to the judge to have a reasonable doubt. Thus, in a case where the prosecutor’s proof does not sufficiently reach the extent that it would lead to such conviction, the prosecutor’s proof

Even if there is doubt that the defendant's assertion or defense is inconsistent or unreasonable, it should be determined with the interests of the defendant (see Supreme Court Decision 2010Do14487, Apr. 28, 201, etc.). Meanwhile, in the crime of bribery, where the defendant, who was designated as the consignee, denies the fact at the time of the acceptance of the bribe and there is no physical evidence, such as financial data to support the fact, there should be evidence of the lightning's statement in order to recognize him/her as guilty, and there should be credibility to exclude reasonable doubt. In determining credibility, it should be examined not only the rationality of the contents of the statement, objective reasonableness, and consistency before and after the statement, but also the interests of the defendant, especially if there is a possibility that an investigation is initiated with respect to such a crime, or if there is a possibility that an investigation agency is being conducted with respect to such a charge, it should be considered that the defendant's statement is not consistent with the Supreme Court's decision 200 times prior to the trial.

The lower court, as indicated in its reasoning, deemed that there was a lack of consistency in Defendant A’s statement as to whether or not Defendant A gave a bribe to Defendant B at the time of the appointment of the president, etc., and the amount and method of delivery of the bribe. Furthermore, in light of the various circumstances as indicated in its reasoning, such as the structure of the office of Prime Minister at the place where the bribe was given and received, the current status and relationship between the sponsor, the ordinary procedure and contents of the sponsor, the details of the guard and performance, the size and thickness of two bags, the shape of the clothes worn by Defendant A and handbags, etc., the shape of the clothes worn by Defendant A and handbags, and the possibility of prior conspiracy on the acceptance of bribe between the Defendant A and the Defendant, the lower court determined that the first prosecutor’s statement made by the Defendant B and the Defendant B was reasonable in view of the following circumstances: (a) there was no possibility for the Defendants to have made a statement to the prosecution, other than the first prosecutor’s statement made by the Defendant A to the effect that the Defendants A’s statement was reasonable.

12. On 20. 20. 20. The court of first instance affirmed the judgment that acquitted Defendant A on the grounds that it is difficult to view that Defendant A’s statement that corresponds to this part of the facts charged that Defendant B received a bribe by delivering USD 50,00 to Defendant B, and Defendant B received a bribe by receiving USD 50,000, and there is no other evidence to acknowledge the guilty of this part of the facts charged.

Examining the reasoning of the lower judgment in light of relevant evidence and the legal principles as seen earlier, the lower court’s above.

The judgment of the court below is acceptable, and there is no error of law by misapprehending the legal principles regarding the credibility, etc. of a statement by a minee, or by exceeding the bounds of the principle of free evaluation of evidence in violation of logical and empirical rules, as otherwise alleged in the grounds of appeal. In addition, when comparing the reasons and records of the court below, the court below did not err by omitting judgment on necessary matters or rectify the violation of the procedures of the court of first instance, and thereby affecting the conclusion of the judgment by making a decision of innocence

3. Conclusion

Therefore, all appeals are dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Young-young

Jeju High Court Decision 201Na1548