1. On the first ground for appeal

A. The facts charged of the crime of violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (hereinafter "the Act on the Aggravated Punishment, etc.") to the defendant are as follows.

The Defendant is a person who is engaged in bond business under the trade name of national investment. The Defendant: (a) by inserting an advertisement to the effect that “the opening, good offices, or discount of notes” is “the opening, or discount of notes” in the daily newspaper, etc. which is located in Daegu City; (b) in a normal way, he is willing to receive a certain fee in return for a discount or arrangement; (c) around January 8, 1996, the Defendant was requested by the Nonindicted Party who was requested to issue the above newspaper at the above national investment office from the said citizen; (d) opened a deposit passbook at the seat of Daegu Bank in his name with his resident registration certificate and seal affixed; and (e) opened the deposit passbook at the same seat of Daegu Bank in his name with a certain amount deposited in the passbook, and arranged the issuance of the household check in accordance with the requirements for opening the bank check; and (e) received two million won from the said person under the name of the fee, and (e) received the above fee from the said Nonindicted Party as stated in the attached list of crimes in the judgment of the first instance.

B. According to the reasoning of the lower judgment and the first instance judgment cited by the lower court, the lower court affirmed the first instance judgment that found the Defendant guilty on the above facts charged, and punished by applying Article 7 of the Act as stated in its reasoning, and maintained the first instance judgment that collected the above amount of KRW 4.4 million by applying Article 10(3) and (2) of the Act.

C. However, money and other valuables are given and received in relation to the arrangement of matters belonging to the duties of officers and employees of a financial institution under Article 7 of the Act, and it does not necessarily require specific specification of the officers and employees of a financial institution who are the other party to the arrangement as a matter belonging to the duties of the officers and employees of the financial institution (see Supreme Court Decision 87Do2353, Nov. 22, 198). However, at least it is necessary to give and receive money and other valuables under the pretext of mediating between the officers and employees of a financial institution who can be the other party to the matters belonging to the duties of the officers and employees of the financial institution at least for the purpose of mediating matters belonging to the duties of the officers and employees of the financial institution. It does not necessarily mean that money and other valuables are given and received in return for providing convenience in handling matters belonging to the duties of the officers and employees of the financial institution.

According to the judgment of the first instance as cited by the court below and the records, the defendant received money and valuables under the pretext of allowing the defendant to receive the virtual check by mediating between the officers and employees of financial institutions, and therefore, it cannot be deemed that the defendant received money and valuables in connection with the referral of the issuance of household checks, which belongs to the duties of the officers and employees of financial institutions, on the ground that the defendant received money and valuables, since he received money and valuables from the non-indicted et al. under the pretext of allowing the defendant to receive the virtual check by mediating it between the officers and employees of financial institutions.

Nevertheless, the court below maintained the judgment of the court of first instance which concluded that the above act of the defendant was the acceptance of money and other valuables for the referral of matters belonging to the duties of officers and employees of financial institutions. Thus, the court below erred by misapprehending the legal principles on referral and failing to exhaust all necessary deliberations, which affected the conclusion of the judgment. The part of the grounds of appeal pointing this out has merit

2. Therefore, the part of the judgment of the court below concerning the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes shall not be reversed, and the judgment of the court of first instance maintained by the court below shall be deemed concurrent crimes and the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes

Therefore, without examining the remaining grounds of appeal, the entire judgment of the court below shall be reversed, and the case shall be remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices.

Justices Park Jong-chul (Presiding Justice)