2014Do13802 Violation of the Aggravated Punishment, etc. of Specific Crimes Act (Bribery)

A

Defendant

Attorney BI, BN, BK

Seoul High Court Decision 2014No1104 Decided October 10, 2014

January 29, 2015

The judgment below is reversed and the case is remanded to Seoul High Court.

The grounds of appeal are examined.

1. As to the acceptance of bribe

Examining the reasoning of the lower judgment in light of the evidence duly admitted by the lower court, it is justifiable for the lower court to have convicted the Defendant of the facts charged in the instant case, on the grounds stated in its reasoning, that “The Defendant received 50,000 U.S. 50 U.S. dollars (500 U.S. 40 U.S. 50 U.S. 50 U.S. 50 U.S.) from employees L who want to receive the construction as a design deliberation and evaluation member of the H corporation’s construction structure part of the H corporation’s construction structure in favor of others.” In so determining, the lower court did not err by misapprehending the logical and empirical rules or by misapprehending

2. As to the legitimacy of the collection

A. The grounds for confiscation and collection, such as whether the subject matter of confiscation is subject to confiscation or the recognition of the amount of additional collection, are not related to the elements of crime, so it is not necessary to prove strict facts, but also necessary to be recognized by evidence (see, e.g., Supreme Court en banc Decision 2005Do9858, Apr. 7, 2006). The recognition should reach a proof to the extent that there is no reasonable doubt.

B. According to the reasoning of the lower judgment, the lower court determined that: (a) on November 14, 2013, the Defendant’s return of KRW 500 (500), which was 2 years and nine months after the date of acceptance of bribe to L; (b) submitted it to the prosecution to the prosecution and seized it; (c) on the ground that the Defendant’s return of the waste which was returned from L differs from the waste bags that was returned to L; (c) the Defendant’s return of the waste containing emulation and the waste bags that was returned to L was mixed with Hungary; and (d) the serial number of some of the waste 100 (500), which was returned by the Defendant, was different from the serial number of some of the waste emulation 100 (500), and the Defendant’s return of the waste 500 (500) should be deemed to have received the most temporary return of the waste emulation from the Defendant; and thus, (d) the lower court determined that the Defendant’s return of the waste 500 (500).

C. However, the above judgment of the court below is not acceptable.

According to the records, the defendant stated to the effect that "(i) he/she received an envelope from L on January 28, 201 and stored L in L in L, as he/she thought to return it, he/she transferred L, and (ii) on November 6, 2013, he/she returned L to L, which was 500 bit 100 L, contained in L, and returned to L, after finding an envelope from L, on November 7, 2013, 201, he/she did not return it to L, and (iii) on the premise that he/she received 0 bit 100 L, which he/she received from L, from L, and the defendant did not return it to 150 bit 5 bit 10 m, or 5 mar mar mar mar mar mar mar mar mar mar mar mar mar mar mar mar mar 20 to other m mar 10.

Examining the above circumstances indicated in the record in light of the legal principles as seen earlier, it cannot be deemed that the circumstance cited by the court below alone alone proves that the Defendant’s 500 chip paper 100 chip paper L returned to L does not coincide with L’s 500 chip paper 100 chip paper L, which was initially returned to L, to the extent that there is no reasonable doubt. Nevertheless, the court below ordered the Defendant to collect the amount equivalent to a bribe from the Defendant solely for the reasons indicated in its holding, and erred by failing to exhaust all necessary deliberations or by misapprehending the legal principles on the proof of the reason for additional collection, thereby

3. Conclusion

Therefore, the judgment of the court below is reversed, and the case is 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 Young-young

Justices Min Il-young

Justices Kim Jae-han

Chief Justice Kim Jong-il