2016No2986 Violation of the Political Funds Act

1. A;

2. B

Defendants and Prosecutor

tin Kim Jong-woo (prosecution), knife, and Kim Byung-kick (Trial)

Law Firm DK (Defendant A)

Attorney DL, DM

Attorney H (for defendant A)

DN Law Firm (for Defendant B)

Attorney DO, DP

Seoul Central District Court Decision 2015Gohap568 Decided September 8, 2016

February 16, 2017

All the judgment below is reversed.

Defendants are not guilty. The summary of the judgment against Defendant A is publicly announced.

1. Summary of grounds for appeal;

A. Defendant A

1) Legal principles

The recording files containing each statement of NN, AO, the recording files containing the statements of X, and the recording files containing the statements of X, the recording records, the notes, and the prosecutor's statements shall be inadmissible.

2) misunderstanding of facts

B’s statement is not reliable, and considering all other evidence, it cannot be recognized that Defendant A received KRW 100 million from B as stated in the judgment of the court below.

3) Unreasonable sentencing

The punishment sentenced by the court below to Defendant A (one year and six months of imprisonment) is too unreasonable.

B. Defendant B

1) misunderstanding of facts or misapprehension of legal principles

Defendant B did not intend to jointly process with X regarding the contribution of political funds to Defendant B, and did not have functional control over it, and the party who provided or contributed political funds to Defendant B cannot be held liable for the violation of the Political Funds Act to Defendant B.

2) Unreasonable sentencing

The punishment sentenced by the court below to Defendant B (six months of imprisonment, one year of suspended execution) is too unreasonable.

(c) Prosecutors;

Each sentence sentenced by the court below to the defendants is too uneasible and unfair.

2. Summary of the facts charged

A. Case background

1) Defendant A’s career

Defendant A was engaged in activities as a member of the National Assembly 15, 16, 17, and 18, and was in office as V from June 2008 to May 2009, from July 201 to April 201, the highest member of T Party, from July 201 to December 201, 201, and from July 201 to December 201, Defendant A was in office as the highest member of T Party (representative). From July 201 to December 201, Defendant A was in office as U V and from June 2014 to the 6th simultaneous local election.

2) Defendant B’s career

Defendant B served as the vice president from around August 1995 to May 2008 in the World Day from around August 198 to around August 1995, and from around May 2008 to around February 2009, Defendant B served as the advisor of W Co., Ltd (hereinafter referred to as “W”), from around May 2008 to around February 2009, and from around March 2010 to January 2012, Defendant B worked as outside directors and the vice president from February 2012 to June 2013.

3) X’s career X has been operated as the president of W, together with affiliates, such as YA and ZAB.

X registered the 19th National Assembly member election in front of the election for the 19th National Assembly member implemented around April 2012, but did not receive official nomination. After the election of the 19th National Assembly member by the AB Party, X was elected in the election for the 19th National Assembly member on December 28, 2012; however, on May 13, 2013, the Daejeon District Court rendered a judgment of 8 months of imprisonment, 2 years of suspended execution and 2 years of non-guilty; and on June 26, 2014, the Daejeon High Court rendered a judgment of 5 million won and 5 million won of a fine, respectively; and on June 26, 2014, the appeal was dismissed by the Supreme Court and the judgment of the said appellate court became final and conclusive.

B. Specific criminal facts

1) Defendant A

During the period from June 11, 201 to June 30, 2011, Defendant A received a KRW 100 million from the office room of Defendant A of Yeongdeungpo-gu Seoul Metropolitan Government Council Library A, from the office room of Defendant A, and from B to the newspaper site, shopping bags consisting of KRW 100 million as the party representative fund. Accordingly, Defendant A received a contribution of KRW 100 million, even if he did not receive political funds in a way that is not provided for in the Political Fund Act.

2) Defendant B

From June 11, 201 to June 30, 201, Defendant B called “A” to deliver funds prepared from X to “A” and received the shopping bags containing KRW 100 million in cash in W. The date, time, and place described in the foregoing paragraph (1) as mentioned above, Defendant B provided KRW 100 million for “A” as a representative election fund.

As a result, Defendant B contributed 100 million won of political funds in collusion with X, even though he could not contribute political funds in a way that is not provided for in the Political Funds Act.

3. Determination on the remaining part except Defendant A’s assertion of unreasonable sentencing

A. Existence of admissibility

1) The integrity and identity of each statement (recording, recording, and recording) recorded by NN and AO with the original is related to facts in litigation and can be freely proven (see Supreme Court Decision 2000Do1743, Sept. 4, 2001). According to the evidence duly adopted and examined by the court below, each recording file containing the contents of each statement made by N and AO can be recognized as a copy of the original without any artificial adaptation, such as compilation compilation, in the process of copying from the original, and since N and AO recognized their authenticity, each of the above recording files and each recording recording shall be admissible.

2) X’s statement (recording files, tape-recordings, notes, notes, prosecutorial statements)

A) Defendant A consented in the lower court’s trial on April 3, 2015 of X-X’s interrogation protocol by the prosecution and on the record of telephone interview recordings with BB on April 9, 2015.

They are admissible in all respects.

B) In full view of the circumstances acknowledged by the lower court’s duly admitted and examined evidence as to each of the recording files and the records recorded on March 30, 2015, and the circumstances acknowledged by the evidence duly admitted and examined by the lower court, namely, the structure and consistency of X’s statement in each of the recording files, the process and developments leading to X’s respective statements, and the degree of the X’s statement, the statement recorded on the recording file of March 30, 2015, and the part regarding Defendant A in the statement recorded on the recording file of April 9, 2015 is false.

Since there is little room and it is reasonable to view that there is a specific and external circumstance to guarantee the credibility or voluntar of the content of the statement (see, e.g., Supreme Court Decisions 9Do3786, Nov. 26, 1999; 2005Do9561, Apr. 14, 2006); each recording file containing X’s statements that died on April 9, 2015; and the recording file containing the contents of the recording on March 30, 2015; and the notes that can be the same contents as the statement made on April 9, 2015 are all admissible in accordance with Article 314 of the Criminal Procedure Act (On the other hand, as seen in paragraph (a) above, recording of an interview made on April 9, 2015 can be admissible as evidence if they are recorded; and even if the recording file on April 9, 2015 is inadmissible as evidence.

C) Furthermore, the hearsay rule does not apply to cases where: (a) the authenticity of the statement contained in a recording file is not the authenticity of the statement itself; (b) the existence of such statement is subject to proof; or (c) the existence of an indirect fact unrelated to the authenticity of the statement is used as circumstantial evidence (see, e.g., Supreme Court Decisions 99Do1252, Feb. 25, 2000; 2010Do3504, Feb. 15, 2013; 2013Do2511, Jul. 26, 2013; 2014Do10978, Jan. 22, 2015). As examined below, in determining the credibility of the statement in B, the existence of X’s statement itself may be used as evidence without the application of the hearsay rule to the extent that it is used as circumstantial evidence.

B. Existence of credibility of the B’s statement

1) Relevant legal principles

A) In a case where the issue is whether to receive money or not, in order to acknowledge a guilty on the sole basis of a statement made by a person who denied the receipt of money by the defendant, and provided money without any objective evidence, such as financial data to support the receipt of money, the admissibility of evidence is required as well as the credibility of such person’s statement. In determining credibility, there is a need to also examine whether there is a concern about the reasonableness, objective reasonableness, consistency before and after the statement itself as well as his human nature, in particular, if there is a suspicion of a crime committed against him, and there is a possibility that an investigation may be initiated, or if there is a possibility that the statement may be conducted in the course of an investigation, and if there is a possibility that the admissibility of the statement would not reach the extent that the statement would be denied, there is a concern about intimidation or revolving, etc. by using it, and whether efforts to escape from the imminent wife may affect the statement (see, e.g., Supreme Court Decisions 200Do5701, Jun. 11, 2002; 2007Do418.

B) Since the statements made by the money and valuables donor or the defendant contain the truth, some of the false, exaggeration, or clerical error, a fact-finding judge in charge of a criminal trial shall make efforts to find out the truth, and to ascertain the substance of the case by combining the truth, among the statements that are mutually contradictory and contradictory between the money and the defendant, and that the credibility of some of the statements made by the money and valuables donor is recognized without such efforts. If the statements that correspond to the facts charged are reliable, and the defendant's assertion that are inconsistent with the facts charged are entirely rejected, it is difficult to accept that the part of the defendant's argument that denies the facts charged is not different from that of the defendant's statement, and that the conclusion thereby is based on a sound argument (see, e.g., Supreme Court Decisions 2010Do1487, Apr. 28, 2011; 2010Do1487, Oct. 16, 2013).

C) As to whether a person’s statement can be trusted on various factual relations including the provision of money, in accordance with the above criteria, if the court rejects the credibility of the part of the statement as it was revealed in objective circumstances, etc. that make it difficult to believe the considerable part of the statement as it is, the credibility of the statement should be deemed as a whole. Thus, even if there were no objective circumstances, etc. that make it difficult to believe the remainder of the statement on the provision of money directly, it should not be permitted to acknowledge the remainder of the statement without permission on the ground of the person’s statement in principle.

Unlike the part of the statement that rejected credibility in order to acknowledge some of the remaining facts, there should be special circumstances to resolve reasonable doubts, such as cases where only this part of the statement is sufficiently presented to the extent that the grounds for credibility can be satisfied, or where the statement is sufficiently supported by other evidence that can reinforce the statements (see Supreme Court Decisions 2008Do8137, Jan. 15, 2009; 2010Do9633, Nov. 11, 2010).

D) Criminal facts in a criminal trial should be established based on strict evidence with probative value, which makes a judge not to have any reasonable doubt. Thus, in a case where the prosecutor’s proof does not sufficiently reach the extent that the defendant’s assertion or defense is inconsistent or unreasonable, the interests of the defendant should be determined even if there are suspicions of guilt, such as the defendant’s assertion or defense is inconsistent or unreasonable. In addition, the subject of such strict proof includes all specific criminal facts as stated in the indictment. In particular, since the date and place of a crime specified in the facts charged are mainly subject to the defendant’s defense, it should be acknowledged through strict proof, and it should not be acknowledged that there is proof of criminal facts on the grounds that there is a probable probability that the crime was committed at other time and place (see, e.g., Supreme Court Decisions 2010Do1628, May 13, 2011; 2012Do231, Jun. 28, 2012).

2) Determination

A) According to the facts charged in the instant case, only B is the person who directly delivered money to Defendant A. In particular, among the facts charged, the direct evidence of the part where B received money from Defendant A to Defendant A is only the following statements (On the other hand, X did not directly experience the process of delivery, but X did not make a statement in the telephone interview with the Xdo B). Therefore, in order to acknowledge Defendant A guilty of the facts charged in the instant case, there should be credibility to exclude reasonable doubts in the statement in B.

(1) On June 3, 2011, B received shopping bags containing KRW 100 million from X and kept them at its own house, and thereafter, during the period from June 3, 201 to June 22, 2011, B stated to the effect that the said shopping bags were delivered to Defendant A as the office-based loan for the representative of the party branch of the Party.

(2) In addition, B made a statement at the prosecutor's office on the front and rear circumstances of the delivery of money and valuables, such as the developments leading up to X and Defendant A's call, the process of receiving money from X after receiving money, the contents of communication with his wife, the process of moving from AJ to the National Assembly, the process of moving the vehicle from AJ to the office of work, the process of moving Defendant A to the office of work of Defendant A, the process of moving Defendant A to the office of work of work of Defendant A, and the contents of conversation with Defendant A, etc., prior to the delivery of the money and valuables, while some parts were not memory, they made a concrete statement of facts (the detailed contents about this).

B) However, according to the following circumstances acknowledged by the lower court and the first instance court’s duly admitted and investigated evidence, it is true that the part of the statement that B received KRW 100 million from X around 201 and then delivered money and valuables to Defendant A around that time, seems to have some credibility.

(1) On March 30, 2015, X discussed measures to determine how W’s use of the visa to the prosecution, along with AF and X S, the highest person in charge of the finance of W, as well as BE, who is the secretary in charge of the finance of W. It stated to the effect that X provided money to B and B in response to the horses naturally corresponding to the foregoing end.

(2) On April 1, 2015, AE delivered a X proposal to the effect that "it is defective that 100 million won received from B was used for the cost of living," and on April 3, 2015, AE delivered a proposal to the effect that "it is defective that it was used for the cost of press measures". However, B rejected all of it, and on April 3, 2015, B first informed AE of the fact that the above KRW 100 million was given to Defendant A (AE’s statement) and (3) B sent it to Defendant after the visit by AE on April 1, 2015 (AE’s statement).

(4) On April 6, 2015, X sought B with AD and AE, who worked as its executive officers, and B sent 100 million won to the Defendant A. In this case, B responded to several questions of X related to the current transmission process, etc. at the time, and responded to the purport that B confirmed the fact of delivery to X (each of the statements of AD and AE). (5) On April 13, 2015, X refused to answer to the purport that B was confirmed at the time, and on April 14, 2015, AO calls to each of B or B (the Defendant means the Defendant’s passport side) or B (the Defendant means the Defendant, including the Defendant). However, the Defendant rejected the above proposal, not the Defendant’s submission.

(6) Each of the above proposals by NN and AO seems closely related to Defendant A in light of the following circumstances:

(A)N immediately before and after the call with B as above, made a telephone conversation with C Q as the chief of the Office of Secretary A.

(B) From April 11, 2015 to April 13, 2015, Q made a telephone call between N and about 20 times in addition to the currency referred to in the above paragraph (a). During the above period, the Defendant made a telephone call to N and immediately after the call with N and the call again was made to N and immediately after the completion of the said call.

(C) A0do A0 was made several telephone communications with DQ attorneys and DR, which had a close relationship with Defendant A prior to the delivery of A0do B.

(7) On April 9, 2015, X told the Defendant A through B to deliver KRW 100 million to the telephone conversationss with BB reporters of the instant tendency newspaper immediately before committing suicide.

(8) Meanwhile, Defendant A made a statement to the effect that it was impossible to pay KRW 120 million to his spouse at the time of committing the crime in 2011 (see, e.g., Article 6(5), Article 7(1), and Article 10 of the Political Funds Act). However, considering that: (a) Defendant A’s statement to the effect that it was possible to collect support payments for intraparty competitive election by paying deposit money under the Political Funds Act; (b) Defendant A’s statement to the effect that it was difficult to obtain support payments from his spouse; (c) Defendant A’s statement to the effect that it was difficult to obtain support payments from his spouse; and (d) Defendant B’s statement to the effect that it was difficult to obtain and deliver funds from his prosecutor’s office for the following reasons: (a) Defendant B’s statement to the effect that some of B’s statement is inconsistent; and (b) Defendant A’s motive or statement to the effect that it was difficult to obtain funds from his prosecutor’s office around June 201.

(1) The abstract B’s statements were repeatedly and abstractly stated the contents such as the above-mentioned A’s clause, and the above-mentioned 1’b as of the previous and previous circumstances, not only his own experience experienced at that time, but also his theory of prosecution based on general experience.

(A) B made a statement that included specific facts about the contents of Paragraph (1)(b) above in the prosecution. This is as seen earlier.

(B) However, in the judgment of the court below, B only memorys the impression of the facts charged of this case, and most of the matters are not memorys (such as shopping bags containing KRW 100 million and there was no memory as to the process of passing the parliamentary hall security screening). Of the facts before and after the written by the prosecutor, a large portion of the facts before and after the written by the prosecutor were stated by the prosecutor, not the statement of the actual experience, but it would have done so normally at the time of June 201.

(C) Ultimately, B has consistently made an abstract statement that corresponds to the facts charged in the instant case, but it is difficult to state his or her experience about the details before and after it. However, according to the facts charged in the instant case, the date and time of granting money and valuables to Defendant A is relatively long-term between June 11, 2011 and June 30, 201 based on B’s statement and account details on non-funds. In such a situation, the circumstance that B’s statement is abstract should be considered as a negative consideration to the judgment on the credibility of the statement when considering Defendant A’s defense right.

(2) Contents, such as modification, inconsistency, etc. of the statements, which B made in detail as if it were actually memoryd by the prosecution.

As seen below, there are parts different from objective facts, and their contents are inconsistent or contradictory to the statements of other persons. In particular, partial changes are about the parts that were stated differently from memory according to the prosecutor's point of view or his own reasoning.

(A) B stated in the prosecutor's office and the court below's decision that he arranged X and the defendant A to act as a broker before delivering money and other valuables to the defendant A, but the court of the trial stated that he does not act as memory only in the specific communication process. However, the prosecutor's office stated that he is not able to act as a broker for the two people's remaining lives. B stated that he did not act as a broker for the prosecutor's office, but he stated that he did not act as a broker for the prosecutor's office. B stated that he did not act as a broker for the prosecutor's office, but he did not act as a broker for the two people's remaining lives."

(B) B, at the initial statement at the prosecutor’s office, did not mention at all as to the replacement of cash belts from its house to rubber lines, and began to state that part after AJ stated that it replaced the belt to rubber lines at the prosecutor’s office. B thereafter, rubber lines

AJ stated that the source, etc. is memoryd differently from the AJ, and when it comes to the trial, the AJ changed its statement again after the end of the trial.

(C) On May 5, 2015, B made a statement to the effect that, on the day or following the day he received the shopping bags from X, B came to a member of the Council, which was received the shopping bags from May 5, 2015. However, in the court below, B made a statement to the effect that, in the court below, it was not accurate memory, that it was based on ordinary experience, but rather on the following day. In the trial, B may keep the shopping bags from its home for 2 to 3 days, and that there was no accurate memory.

(D) B shall memory the way that he has moved from his home to the parliamentary hall. The contents that he has made in detail at the prosecutor’s office (after the original court, the original court reversed his statement to the effect that it is only a statement of ordinary route, not a statement of memory, after the original court), and the contents that the AJ stated as to the above route are different.

(E) In addition, B made a consistent statement at the prosecution that the driver was himself or herself at the time, and the AJ stated that the AJ was on the back of himself or herself, while B made a statement that the AJ was on the back of her.

(f) B entered the National Assembly room on the south side of the National Assembly room through the entrance of the National Assembly room of 1st century, and entered the National Assembly room of 2nd century to the National Assembly room of 1st century, and made a concrete statement. According to the records, the extension of the Council room was in progress around June 201, and (1) the passage of the National Assembly room was installed and operated by the National Assembly room of 1st century as well as the passage of the National Assembly room connected to the above room was all closed, and the temporary room was installed and operated on the front side of the Council room of 6th century, and (2) the remaining part of the National Assembly hall was installed in the vicinity of the entrance and exit of the National Assembly room of 1st century to the end of the existing Council room of 1st century, and the remaining part of the Council room of 1st century to the direction of the National Assembly (see, e.g., Supreme Court en banc Decision 201Do741, Jul. 7, 201).

(G) Meanwhile, around June 3, 2011, the AJ made a statement that seems to correspond to the statement of B while leaving the National Assembly, along with B, around June 201. However, as in the AJE B, it did not make any statement at the prosecutor's office or the court below at all regarding the construction situation, such as the above paragraph (f), as in the AJE B, and there is no question as to whether AJ went outside the National Assembly with B at the above point of time (in particular, the AJ does not associate with the National Assembly when preparing a written statement at the prosecutor's office on May 3, 2015). In the prosecution investigation process, it appears that such construction was in itself a part of the facts referred to in the BJ, but although B or AJ did not mention the construction of the Assembly hall as above before the submission of relevant materials by Defendant A's defense counsel in the AJE court in the AJE court, it would create any question more).

(h) B, around June 2011, at the time of delivering money and valuables to Defendant A at the prosecution, clearly explained the status of Defendant A’s office room and the location of Defendant A and the location where Defendant A were seated. However, the arrangement of green wave does not coincide with the actual arrangement of small wave around June 201 and around 201.

(자) 위와 같이 B는 2011. 6.경의 금품 전달에 관하여 많은 부분을 AJ와 달리 진술하거나 사실과 다르게 진술하였고 일부는 진술내용을 변경하였다. 이처럼 B가 2011. 6.경의 일, 특히 의원회관에 출입하는 과정에 관하여 구체적이고 세부적인 진술을 하지 못하는 것은 이 사건이 불거진 2015. 4.경에는 이미 시일이 많이 경과되었고 B가 2015. 3.경에 설암수술 받았던 것 등에 기인한다고 볼 여지도 있다. 그러나 B는 자신이 1억 원을 타인에게 전달한 것은 평생 한 번밖에 없었던 경험이라고 하는바, 그러한 상황에서 위 (바)항에서 본 바와 같이 눈에 띌 수밖에 없는 공사상황조차 전혀 기억하지 못한다는 것은 쉽게 상정하기 어렵고, 무엇보다도 자신이 전혀 기억하지 못하는 것을 기억하고 있는 것처럼 검찰에서 구체적으로 진술한 것은 어떠한 이유를 제시하더라도 그대로 받아들이기 어렵다.

(3) The lack of motive to receive money and valuables stated to the effect that X will bring about KRW 100 million to Defendant A as a substitute fund in 2011. However, even if Defendant A’s shortage of the light fund around June 201, such as the foregoing subparagraph (b)(8), it is difficult to find any motive to receive money and valuables from X other than other people at that time.

(A) Defendant A had no friendly relationship with X around June 201. A and E testified that there was no friendly relationship between them, and Defendant A’s gift list around the end of the year 2011 was missing. There were no other data to identify whether there was a telephone conversation between X and Defendant A, and there were no other data to recognize the friendly relationship between Defendant A and X.

(나) 앞서 본 바와 같이 B는 당심에 이르러 금품 교부 전에 피고인 A와 X의 만남을 주선한 적이 없는 것으로 기억하고 검찰에서도 처음에는 주선하지 않은 것으로 말했다는 취지로 진술을 바꿨다. B의 검찰에서의 초기 진술을 살펴보면 B가 위와 같은 만남 주선을 언급한 적이 없고 단지 X이 자신에게 전화를 걸어 피고인 A와 만났음을 알리는 시점부터 진술하였는바, 이에 비추어 보면 B의 위와 같이 변경된 진술내용이 허위라고 단정하기는 어렵다. 또한 B가 X과의 만남 주선을 위하여 피고인 A 측에 연락하였다는 객관적인 자료도 없다. 이와 같이 B의 주선이 없었다면 2011. 6.경 피고인 A와 X 사이의 만남을 쉽게 상정할 수 없다.

(C) AX had the record of punishment for the past illegal political funds as a contribution, and X was not able to receive official approval due to the question of this power at the time of TW party’s official examination. The foregoing history of X seems to have been well known within the political sphere.

(4) Of the contents of the statement by B during the process of delivery, such as the place of delivery of money and valuables, the content of the process that B sent KRW 100 million to a member center together with his/her spouse shall not be easily accepted in light of the following:

(A) B stated that X stated to the effect that “B is well Hahdoh Hah Hahdoh” when X 100 million won is dry.

(B) Nevertheless, B received the shopping bags containing KRW 100 million from X and presented it to her wife as it is, and even thereafter, AJ made a statement to the effect that B did not speak in advance at the time of resignation of B in the East Asia, and that it did not go to the Council. However, AJ made a statement to the effect that B did not speak in advance at the time of resignation of B in East Asia, and that it did not go to discuss with it.

(C) In addition, a parliamentary hall also manages and preserves the vehicle entrance records as well as the entrance and exit records, there are a large number of CCTVs in the entrance, and in the entrance, there are many employees and civil petitioners, etc. inside the building, and the employees are in the attached room of the parliamentary hall. Therefore, in a case where B delivers money and valuables within the parliamentary hall, it is highly likely that B will have been present by a large number of people as well as the entrance records. However, it is difficult to understand that B, who is well aware of these circumstances, has delivered money and valuables at the parliamentary hall even after hearing the speech, could not be understood that B delivers money and valuables at the parliamentary hall. In particular, X and Defendant A could have delivered money and valuables closely at any place other than Defendant A’s house or at any other place. In particular, it was possible to deliver money and valuables to others without giving notice through the same process.

(D) On the other hand, B stated to the effect that money and valuables were given to Defendant A before entering the National Assembly at the time of the National Assembly’s arrival, and explained to the effect that it was difficult to park in the National Assembly and that there was no special reason to view the circumstance before entering the National Assembly. However, at the time, the first floor entrance was obstructed by the National Assembly hall, and that there was a considerable height of construction work from the entrance to the National Assembly. As seen earlier, if the vehicle of AJ was set up to the National Assembly, it would be more general to leave the vehicle in the vicinity of the National Assembly where it was installed by leaving the vehicle of AJ to the National Assembly, not to leave the vehicle near the south of the National Assembly where it was installed, but to leave the vehicle in the vicinity of the temporary direction road that ends.

Moreover, it is not easy to understand that the AJ's vehicle after September 2012 when entering the National Assembly and staying a short period of time after having been inquired of the access records of the vehicle, and that even though B gets a short distance of KRW 100 million, it was hard to understand that B left the Republic of Korea outside of the National Assembly while leaving a short distance.

(5) Absence of a circumstance to provide profit or convenience

If X delivered KRW 100 million to Defendant A through B, the circumstances on the provision of benefits or convenience to Defendant A could not be found.

(A) According to the statements, etc. of AF and AG, X used the cost of 100 million won or more. Such delivery would have been an exceptional case. However, there is no evidence that the Defendant requested the cooperation of Defendant A in 2012 total line or demanded other benefits in return for the delivery of the cost of 100 million won or more. B also stated that there was no witness to the said request or to the witness of X (B continued to request the cooperation of X only to the DS having a pro rata relationship with himself).

(B) Even before the visit to X on April 6, 2015, B had not been aware of the existence of the fact that X had confirmed the delivery of money to Defendant A (the written statement dated April 26, 2015). Accordingly, the meaning of X was that X did not mention the result of the delivery of money to Defendant A, or that there was no subsequent measures related thereto with B, around June 201.

(C) Rather, Defendant A rejected B’s request from Defendant A, which is, around 2010, asked Defendant A to have been able to serve as the chairman of the Council of Party Members in DT (this led to the fact that a person who had previously been able to be able to serve as the chairman of the Council of Party Members in DT) and again requested A to have the said jobs at around August 9, 201 after he conspired with the chairman of the said Organization at around 2011, but Defendant A refused B’s request with reply to the purport that “A shall yield at once.”

(D) On the other hand, Defendant A requested an order to be made to him in relation to the judgment on the violation of the Public Official Election Act, but stated that he refused it.

(6) It is not clearly revealed by the financial account that the uncertainty X of the source of funds raised the amount of KRW 100 million between June 3, 201 and June 22, 201, and the statement of the AG in charge of raising the amount of funds was not clearly stated.

(A) The details of the deposit and withdrawal (the omitted part on the interest payment) around the above time of the W’s Non-Fund Account are as follows.

(unit: Won)

A person shall be appointed.

A person shall be appointed.

(B) On the first half of the prosecutorial statement, B made a statement that X received money from the Defendant A, and later changed the statement that X returned to B after receiving “within 1 to 2 days after receiving the phone or within 2 to 3 days after receiving the phone.” However, B said that X was called “A Council members when receiving the first call from X, X was her member, and she was her to prepare for money by receiving AF.” In light of this, it is difficult to see that X was preparing funds in advance to AF, and ultimately, the time during which X was able to prepare funds through AF shall be deemed to be the maximum time.”

(C) Although there are somewhat different parts in the statement, AF AG always withdrawn at least KRW 30 million from the beginning of 2011 to hold it in cash (or KRW 25 million from the beginning of 201) and stated that there was a case where 50 million was disbursed as a non-financial expense and received the return thereof. Accordingly, if KRW 10 million was created within 3 days from W around June 9, 2011, it is possible to withdraw KRW 35 million from the non-financial account around June 9, 201 to return KRW 25 million from the total amount of KRW 160,000,000 from June 16, 201 to return KRW 50,000 from the total amount of KRW 25,500,000,000,000 from the total amount of KRW 16,50,000 from this account.

(D) However, if the circumstances leading up to the creation of the non-financial expense are the same, it is necessary to supplement the amount of KRW 29 million around June 9, 201, as the amount of cash exceeding KRW 30,000,000 that was withdrawn prior to June 9, 201, was used as the non-financial expense, and the amount of KRW 50,000,000 prior to the withdrawal should have been used as the non-financial expense. However, the withdrawal of money does not appear to have been made prior to June 9, 201, which would have been near to KRW 80,000,000 at the close time.

(E) In addition, even if the amount of the funds are supplemented after June 22, 2011, according to the method of operating the funds of AF and AG, the cash market should have been prepared at least 30 million won as soon as possible after the use of the funds. However, if the funds were excluded from the amount of KRW 12 million on June 23, 201, it is difficult to view that all the money withdrawn in cash was used until July 1, 201.

(F) Meanwhile, while AG, an employee who was in charge of raising funds in W, stated that it would not be accurate memory overall, the time when KRW 50 million was created with the refund of KRW 100 million during the year 201 and the time when the bank guidance of KRW 100 million was not replaced with the funds of KRW 100 million during the year 201 and the time when the funds were rapidly produced, all, are deemed to be the second half of 201. In fact, such as AG’s statement, the amount of KRW 5 million on October 10, 201 and KRW 45 million on October 21, 201 were withdrawn from the funds account, respectively.

(7) B without material evidence shall be capable of determining the authenticity or credibility of its statement as follows:

The evidence required was not submitted to the prosecution. Accordingly, it was not revealed that the circumstances necessary for the verification of facts, such as whether X and the defendant met in 201, whether there was any false statement between April 1, 201 and April 15, 2015, and whether there was any conversation recording between X and B on April 6, 2015.

(A) On April 1, 2015, B visited AE, replaced the Handphone (hereinafter referred to as “bronphone”) used by it by a new Handphone (hereinafter referred to as “bronphone”) with a new Handphone, sent it to AK.

(B) B used a Myanmar Hand phone from April 1, 2015 to April 15, 2015, and, with the advice of AL or AK, she was in contact with the surrounding area by using the word "comtogram". The term "comtogram" is a smartphone display which is known as not being able to restore the conversation again.

(C) Meanwhile, there was a press report to the effect that X was recorded on April 6, 2015 the content of the conversation at the time that X sought B, but the authenticity was not accurately revealed. However, as seen earlier, B used a Myanmar handphone between April 1, 2015 and April 15, 2015, and recorded each conversation with NN and AO with the handphone.

(D) A prosecutor obtained a warrant of search and seizure on April 15, 2015, around 18:00 and returned the warrant to B on the ground that it was not related to the instant mobile phone because it was not only the recent telephone content and it was not related to the instant case (B seems to have requested to protect private life).

(E) B promised to voluntarily withdraw a mobile phone used in the process of executing the above search and seizure warrant, and voluntarily submitted two mobile phone units, etc. used in the past, around April 16, 2015, the following day. One of the two mobile phone units above is the period of use from May 2008 to June 2009. The other one is from February 2012 to September 2013.

(F) After the above search and seizure, B stated that AL was the owner of a Myanmar-type mobile phone and the owner of such mobile phone, and that AL actually discarded the Myanmar-type mobile phone.

(다만 실제 폐기 여부는 확인되지 않았다). 그런데 AL는 B로부터 명시적으로 폐기를 요청받은 적은 없다고 진술하였고, 오히려 B에게 '사실대로 말하고 싹싹 빌어라.'라고 조언하였다고 하면서도 B의 허락 없이 그 휴대폰을 폐기하였다는 것이어서, 그 폐기 경위에 석연치 않은 부분이 있다.

(G) On May 2, 2015, the prosecution issued a search and seizure warrant again and sought to seize B’s remaining Handphones (However, on April 16, 2015, the prosecution could have known the existence of a conversation recording file with B inside the Myanmar cell phone). The prosecutor had been seized from AK where the cell phone was in custody but failed to seize the Myanmar cell phone because the location of the cell phone was not discovered.

(h) As above, B’s cell phone was offered to the prosecution before and after the date and time indicated in the instant facts charged, but the cell phone used by B was not secured by the prosecution from April 1, 2015 to April 15, 2015, when the date and time indicated in the instant facts charged, and from April 15, 2015, when B anticipated the progress of the investigation into the instant case.

B had the motive for false statements made in early April 2015, and even after the operation, there was time to prepare for the future investigation process. Around that time, there was a sufficient opportunity for lawyers to receive their help by consulting with lawyers.

(A) As seen earlier, there are various circumstances to deem that B actually received KRW 100 million from X, and on April 1, 2015, the first patrol officer commenced the embezzlement investigation of X and the fact that X delivered KRW 100 million to B was known to the prosecution by the prosecution. B confirmed all of such circumstances through AE around April 1, 2015. Accordingly, B was aware that in relation to the above KRW 100 million, it could be investigated as suspicions of directly involved in X’s embezzlement or delivery of money and valuables to others.

(B) On April 1, 2015, B contacted with a lawyer by introducing AL, AK, etc. after having been employed by AE on April 1, 2015, and from April 3, 2015, B and AJ have consulted with a lawyer. The most important thing is that B is not bound by this time.

(C) At around April 13, 2015, B, through an attorney-at-law, performed a first interview with the prosecutor, and around April 16, 2015, the search and seizure executed on April 15, 2015, B had the second interview with the prosecutor. In addition, B did not immediately submit a file recording a conversation with NN and AO to the prosecutor. On April 13, 2015, the file recording a conversation with AO was submitted on April 16, 2015, and on May 3, 2015, the file recording a conversation with AO was submitted respectively. Moreover, in the above conversation with AO, only the entire file is not recorded.

(D) As seen earlier, B, from April 3, 2015 to April 15, 2015, recorded and copied each conversation with AO using a Myanmar cell phone, and had AL discard the recording file on and after April 15, 2015. B, during the said period, was able to sufficiently discuss the instant case’s discussions by using the word word “comtogram” in the Myanmar cell phone, and was reported to the press from April 6, 2015 to the point that the conversation with X was recorded on April 6, 2015.

D) Ultimately, as seen above, the statements made by B, which seem to correspond to the facts charged in this case against Defendant A, appear to be reliable to some extent and the defense of Defendant A is inconsistent or unreasonable. However, on the other hand, in this case where there are circumstances where it is difficult to believe the statements made by Defendant B as it is, as seen above, in light of the legal principles set forth in paragraph (1) and paragraph (d), there is no evidence to prove the above facts charged, and in particular, the remaining evidence submitted by the prosecution alone is insufficient to acknowledge the facts charged without any reasonable doubt, and there is no other evidence to acknowledge it. Accordingly, the judgment of the court below that convicted Defendant A of the facts charged, which affected the conclusion of the judgment, is erroneous, and the allegation by Defendant A as to this is with merit.

4. Ex officio determination on Defendant B

As to the facts charged that Defendant B gave a shopping bags containing KRW 100 million in cash from the National Assembly's office room located in the National Assembly members' hall during the period from June 11, 2011 to June 30, 2011, Defendant B was unable to trust Defendant B's confession statement, and the remainder of the documents submitted by the prosecutor's office is insufficient to recognize this, and there is no other evidence to acknowledge this differently. Accordingly, the lower court's judgment that convicted Defendant B of the facts charged as to Defendant B is erroneous and adversely affected the conclusion of the judgment.

5. Conclusion

Since Defendant A’s appeal is well-grounded, pursuant to Article 364(6) of the Criminal Procedure Act, without examining the Defendant A’s assertion of unfair sentencing, Defendant A’s appeal is reversed, and the part of the judgment of the court below is reversed, and Defendant B’s appeal is subject to the aforementioned ex officio reversal, and Defendant B also reversed the part of the judgment of the court below under Articles 364(2) and 364-2 of the Criminal Procedure Act without examining the grounds for appeal by Defendant B. It is again decided

[Grounds for multi-use Judgment]

The gist of the facts charged against the Defendants is as described in paragraph (2) of this case among the judgment on the grounds of appeal. The evidence submitted by the prosecutor for the same reason as stated in paragraphs (3) and (4) of this case is not sufficient to acknowledge the facts charged and there is no other evidence to acknowledge it otherwise. Therefore, since the facts charged in this case constitute a case where there is no evidence of a crime, the judgment of innocence against the Defendants under the latter part of Article 325 of the Criminal Procedure Act shall be pronounced, and the summary of the judgment against the

It is so decided as per Disposition for the above reasons.

The presiding judge or higher judge;

Judges Kang Jae-sung

Judges Choi Du-ho