2016No3474 Acceptance of bribe

A

Defendant

An on-site, on-site, or on-site (public trial)

Attorney B Q

Suwon District Court Decision 2016Ra1819 Decided November 24, 2016

February 7, 2017

The defendant's appeal is dismissed.

1. Summary of the grounds for appeal;

A. Error of mistake

1) The Defendant did not receive KRW 5 million as stated in the facts constituting the crime No. 1-A of the judgment below.

2) The Defendant did not receive KRW 2 million as stated in the facts constituting the crime No. 1-e of the judgment below.

3) The fact that medical services, such as the statement in paragraph 1-b. (c) was received as stated in the judgment of the court below, or the price was paid in cash.

4) The medical services described in Section 1-2(c)(d) of the facts constituting an offense in the lower judgment are provided on the basis of pro-friendly relationship and are not provided in relation to the Defendant’s duties.

B. Unreasonable sentencing

The punishment of the court below (limited to imprisonment of one year and two months, fine of 56,360,000 won, and penalty of 28,180,000 won) is too unreasonable.

2. Determination

A. Judgment on the assertion of mistake of fact

1) Whether a person receives five million won or more in cash

A) The court below held that in light of the fact that: (a) the defendant obtained the intelligence of the office hall and started the investigation; (b) the defendant was a doctor who lent the name at the time; (c) one of the intent that he borrowed the name at the time; (d) the defendant was a witness; and (e) the defendant was summoned and investigated as a witness; and (d) the fact that the defendant had to be subject to criminal punishment if the suspicion is recognized, as well as administrative sanctions, there was a motive for giving KRW 5 million to the defendant; and (e) in light of the fact that the witness of the original trial, B’s statement and L at the time of withdrawal of KRW 5 million from the ATM device, the fact that the defendant received KRW 5 million as stated in Article 1(a) of the criminal facts in the judgment of the court below is recognized.

B) On this issue, the Defendant asserted that the lower court’s determination that the Defendant received KRW 5 million in cash from L was erroneous, on the grounds that: (a) the evidence presented by the prosecutor alone is difficult to acknowledge that there was a motive for giving money and valuables to the Defendant; (b) the witness B made a statement to the effect that the Defendant denied the crime in the lower court’s court, contrary to the contents stated by the prosecutor; (c) immediately after L’s withdrawal of KRW 5 million, the AF deposited KRW 5 million in the L’s account; and (e) according to the content stated in the confirmation document submitted by the AF, the amount of KRW 5 million in the L was not to be granted to the Defendant, but to be lent to AF.

C) We examine the following facts: ① the result of the case inquiry submitted by the Prosecutor as evidence by the Prosecutor, ② the judgment of the court below that recognized that L had motives to provide money and goods to the Defendant at the time of examining the contents of the judgment (Evidence No. 98), written judgments (Evidence No. 99), and official copies (Evidence No. 101 of the Evidence No. 101 of the Evidence No. 101 of the Record) was justifiable; ② there was a difference between B’s prosecutor’s statement and the court below’s legal statement, but it was not because B denied his participation in the crime of this case, which was not because L denied the fact that L had provided KRW 5 million to the Defendant; ③ The fact confirmation certificate of AF (Evidence No. 73 of the public trial record) is not because L had transferred KRW 5 million to L, but it was merely "repaid because it was borrowed," and the above assertion by the Defendant was not accepted at the time of "the money that LTM was paid by himself from LTM devices."

2) Whether cash 2 million won has been received

A) In light of the following facts: (a) Around June 24, 2015, the lower court found that: (a) the Defendant received KRW 2 million as stated in Article 1-5(e) of the Criminal facts in the lower judgment in light of the following: (b) the fact that: (c) a V, working as an assistant nurse, was involved in the excessive medication of propool, etc.; (d) there was a motive to offer money and goods to the Defendant to avoid this; and (c) the Defendant’s statement that the Defendant provided KRW 2 million is specific and consistent; and (d) the credibility thereof can be recognized in light of the circumstances leading up to making a statement.

B) A thorough examination of records reveals that the court below is justified to recognize the fact that the defendant received KRW 2 million from L on the basis of the above circumstances, and there is no error of law of misunderstanding of facts.

C) Therefore, we cannot accept the Defendant’s above assertion.

(iii) whether medical service charges have been paid;

A) The court below held that it is reasonable to view that the defendant received free medical care in light of the following: (a) the defendant’s family members stated to the effect that “(i) doctor L, the chief of the prime office X, and the chief of the Counseling Office (“Y”) received various types of procedures, but did not pay nursing expenses, etc.; (ii) the defendant’s wife Q Q’s medical services; and (iii) the patient’s mother’s name and other simple personal information are included in U, unlike other in-patients; and (iii) there is no other evidence to deem that the defendant paid the expenses in cash.

B) A thorough examination of records reveals that the above determination by the court below is just and acceptable, and there is no error of law of misunderstanding of facts.

C) Therefore, we cannot accept the Defendant’s above assertion.

4) Whether business relationship exists or not

A) The lower court stated to the effect that ① the Defendant was a police officer of the police station having jurisdiction over the hospital operated by L was in a position to enter and investigate L at any time, ② the witness stated in the lower court that “the Defendant did not want to meet the Defendant, but did not want to contact the Defendant,” ③ the head of the counseling office Y stated that “the Defendant and the Defendant’s wife were in a way to contact the Defendant,” and that “the Defendant did not mention about the settlement when L was the police,” and the head of the original department X stated that “L did not receive the hospital expenses at any time,” ④ the witness stated that L was an extremely large amount of KRW 21,180,000, which is an exceptional price, and that the Defendant was provided with medical care services, not only for the Defendant and the Defendant’s wife, but also for the Defendant’s wife and the Defendant’s wife’s wife’s wife free of charge, and that it was not for the Defendant to have been provided with such care services.

B) A thorough examination of records reveals that the above determination by the court below is just and acceptable, and there is no error of law of misunderstanding of facts.

C) Therefore, we cannot accept the Defendant’s above assertion.

B. Determination on the assertion of unfair sentencing

In full view of the following circumstances: (a) the Defendant denies and does not oppose the crime; (b) the given and received bribe amounting to 28,180,000 won or more; (c) the Defendant actively demanded and accepted the bribe in most cases; (d) the Defendant’s act of accepting a bribe over several times is necessary to undermine the fairness of performance of duties and the trust in society; and (e) the Defendant’s age, details of the crime, and circumstances after the crime, etc., which are the conditions for sentencing specified in the argument of the instant case, the lower court’s punishment is too unreasonable and inappropriate.

Therefore, the defendant's above assertion of unfair sentencing is without merit.

3. Conclusion

Therefore, the defendant's appeal is without merit, and it is dismissed in accordance with Article 364 (4) of the Criminal Procedure Act. It is so decided as per Disposition.

Judges of the presiding judge;

Judges Gangseo-Appellee

Judges Yoon kyl-ran

1) On January 18, 2017, the supplementary appellate brief submitted on January 18, 2017 should be deemed to constitute a part of the crime by providing a third-party cerebrovascular or an additional collection charge.

However, it is obvious that the appeal was filed after the lapse of the time limit for filing the appeal, and the judgment of the court below is made.

It does not seem to be erroneous.

2) In fact, the mother was not the mother of the mother but the mother of the mother.