(영문) 서울고등법원 2013. 3. 22. 선고 2012노2688 판결

The defendant shall be punished by imprisonment with prison labor for not less than six months and by imprisonment for not more than three years for the remainder of the crimes in the holding.

A sum of KRW 100,000 shall be additionally collected from the defendant.

Reasons

1. Summary of the grounds for appeal;

(a) A. Public prosecutor;

1) misunderstanding of facts (not guilty part of the original judgment)

In light of the fact that Nonindicted 3 anticipated the Defendant to make a solicitation related to the receipt of government-funded construction works and remitted money to the Defendant’s attached account under Nonindicted 4, Nonindicted 4 had no independent economic power since 1999, and the Defendant actually supported the Defendant, and Nonindicted 4 did not have any fact of attending or having been in charge of duties in the company related to this case, Nonindicted 3 may evaluate the recipient of this money as the Defendant.

2) Legal principles

As to the violation of the Political Funds Act, a punishment should be determined and sentenced separately from other crimes, but the court below sentenced the punishment en bloc in violation of the Public Official Election Act.

3) Unreasonable sentencing

The punishment sentenced by the court below against the defendant (two years of imprisonment, one hundred and one hundred and one hundred and one hundred and one hundred and one hundred and one hundred and one hundred and one hundred and one hundred and one hundred and one hundred and one hundred million won

B. Defendant

1) misunderstanding of facts or misapprehension of legal principles

A) The part concerning the receipt of money from Nonindicted 1

There is no fact that ○○ received USD 90,00 from Nonindicted 1.

The Defendant did not receive a solicitation from Nonindicted 1 regarding the investigation of the creative site inspection, and the workout program against the ○○○ Group cannot be deemed as a public official’s duty in relation to the crime of good offices and acceptance of goods under the control of the Korea Development Bank.

B) The portion of money and valuables received from Nonindicted 7

The defendant did not specifically request a solicitation or mediation from the non-indicted 7, and even if the defendant received a request for mediation, the officer or employee of the Financial Supervisory Service, who is the other party to the mediation, is not a public official, and therefore, arranged matters

C) As to the violation of the Political Funds Act

The defendant received money from the non-indicted 5 for social activities of the defendant.

2) Unreasonable sentencing

The sentence imposed by the court below against the defendant is too unreasonable.

2.2. Determination

A. A. Ex officio determination

Before the judgment on the grounds for appeal by the prosecutor and the defendant, the prosecutor examined ex officio from the non-indicted 1 who was found guilty at the court below, and changed the facts charged for the violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (A) into the facts charged for the violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (A) and applied the applicable provisions to the "Article 3 and Article 13 of the Act on the Aggravated Punishment, etc. of Specific Crimes," and applied for permission to amend the Act on the Aggravated Punishment, etc. of Specific Crimes to "Article 111 (1) and Article 116 of the Attorney-at-Law". Since the court permitted all of them, the part of the judgment of the court below's conviction against the non-indicted 1 can no longer be maintained. The part of the crime of violating the Act on the Aggravated Punishment, etc. of Specific Crimes (Aggravated Punishment, etc.) concerning the violation of the Act on the Aggravated Punishment, etc. of Specific Crimes and the remaining part which lawfully found guilty by the court's conviction cannot be exempted.

However, notwithstanding such reasons for ex officio determination, the argument of mistake of facts by the defendant and the prosecutor is still subject to the judgment of this court. Thus, we examine the defendant's argument that the indictment was changed in the trial (as to the defendant's argument that the work of the workout does not fall under the duties of the public official in the crime of violating the Special Family Law, since the facts charged were changed to the facts charged in violation of the Attorney-at-Law Act, it is not judged separately, but it is not determined separately because the judgment of the court is reversed in its entirety as to the prosecutor's argument related to the separate sentence, and the prosecutor and the defendant

B. Judgment on the Prosecutor’s misunderstanding of facts

1) Summary of the facts charged in relation to the receipt of money and valuables from Nonindicted 3

In 209, the Defendant received a solicitation from Nonindicted 3 to the effect that “ Nonindicted Company 8 (hereinafter only Nonindicted Company 8), Nonindicted Company 9 (hereinafter only referred to as Nonindicted Company 9), and Nonindicted Company 10 (hereinafter only referred to as Nonindicted Company 10), who are operating in a restaurant located in the jurisdiction of the Seoul City, around the late, around the late, 2009, brokered various landscaping construction projects including government-funded landscaping projects by using the status of assistant officers of the National Assembly members, and would pay for the corresponding consideration by pretending to pay wages to that person even if Nonindicted 4, his father, is not on duty.”

On January 25, 2010, the Defendant received KRW 8,078,960 from Nonindicted 3 to Nonindicted 4 with regard to such good offices, and received it from November 25, 201, the Defendant received money and valuables from Nonindicted 3 on a total of 186,256,960 won in total over 23 occasions, as stated in the attached crime list, and received money and valuables for the good offices of public officials’ duties, from November 25, 2011.

2) Determination

The lower court determined that the evidence alone presented by the prosecutor alone was insufficient to acknowledge that the Defendant received KRW 186,256,960, which was deposited in the instant account from the end of 2008, by taking into account all the following circumstances, including: (a) Nonindicted 4’s withdrawal in cash for a long time from the time of deposit of money deposited in the said account (hereinafter “instant account”); (b) Nonindicted 4 was in office as an executive officer of Nonindicted 11 Company; (c) received money under the name of payment from Nonindicted 12 Company (hereinafter “Nonindicted 12 Company”) with the Defendant’s main office from the end of 2008; and (d) received money under the name of payment from Nonindicted 12 Company (hereinafter “Nonindicted 12 Company”) with the Defendant’s main office from the date of 2010 and 2011, and there was no other evidence to acknowledge that the Defendant received KRW 186,256,960, which was deposited in the instant account.

In light of the legal principles of the Supreme Court Decision 2003Do8077 Decided March 26, 2004, the fact-finding and judgment of the court below are justified and it cannot be found that there is any illegality in mistake of facts alleged by the prosecutor.

Therefore, the prosecutor's assertion of mistake is not accepted.

C. Determination as to the conjunctive charges regarding the receipt of money from Nonindicted 3 added at the trial room

A prosecutor shall maintain the facts charged with the violation of the Special Act on the Aggravated Punishment, etc. due to the receipt of money and valuables from Nonindicted 3, which were found innocent at the court below for the first time in the trial, as the primary facts charged, and additionally add the facts charged with the violation of the Attorney-at-Law Act due to the receipt of money and valuables from Nonindicted 3 as the ancillary facts charged, and examine them as follows.

1) Facts charged (violation of Attorney-at-Law)

In 209, the Defendant was urged by Nonindicted Company 8, Nonindicted Company 9, and Nonindicted Company 3, who operated Nonindicted Company 10 in a restaurant located in the jurisdiction of the Seoul city around late, 2009, to pay the amount corresponding to it by pretending to pay wages to that person even if Nonindicted 4, the father of the Defendant, does not work for him, by taking advantage of the member’s assistant status of the National Assembly, such as “I would see that he would have been able to assist in connection with the owner of the construction work. He will have a burden on his commuting. He will have an opportunity to get him from his place of work, and that he would have a reasonable case in which he will do so.”

The Defendant, on January 25, 2010, ordered Nonindicted 3 to remit KRW 8,078,960 to the account in the above Nonindicted 4’s name on the pretext of making such solicitation or arrangement as above, and had the said Nonindicted 3 transfer KRW 186,256,960 in total to the account in the above name of Nonindicted 4 over 23 times from November 25, 2011, as described in the list of crimes in the attached Table.

Accordingly, the defendant had a third party 4, who is a third party, grant a total of KRW 186,256,960 on the pretext of soliciting or arranging the case or affairs handled by the public official.

2) Defendant’s assertion

The Defendant did not at all promised to allow Nonindicted 3 to receive an order for the government-funded landscaping work, and the company that Nonindicted 3 operated by Nonindicted 3 is not an enterprise specialized in the government-funded landscaping work, and thus, it cannot be deemed that it solicited or arranged the affairs handled by the public officials.

3) Determination

In full view of the evidence duly admitted and examined by the court below, the following facts are recognized:

① At the time of the Defendant’s work at △△△△△, the Defendant asked Nonindicted 13 to the head of △△△△△ Development Center Nonindicted 4’s jobs around the end of 2008, and Nonindicted 13, Nonindicted 13, the representative director of Nonindicted 12 Company 14, saying, “A person with impact who is aware of the assistant officer, will be able to receive the benefit if he becomes aware of the impact.” As such, Nonindicted 4 was employed as Nonindicted 12 Company.

② Nonindicted 3 introduced the Defendant, who is an assistant to a member of the National Assembly, from Nonindicted 13, and attempted to communicate several times, and explained the Defendant’s company or business at the end of his attempt to communicate several times, around 2009. On the other hand, Nonindicted 3 knew that the Defendant’s father did not have any practical benefit after his retirement, and knew that the Defendant’s father did not have any work after his retirement, the Defendant would have gotten her help in relation to the construction contract because he caused a large amount of social ties and has no burden on the part of the Plaintiff, and that it would have a reasonable case in which her son would have no burden on commuting, and that the Defendant would have been able to think at once.

③ Nonindicted 4 joined Nonindicted Company 3 and received total of KRW 186,256,960 over 23 occasions for two years from January 25, 2010 to November 25, 2011, as indicated in the list of crimes in the separate sheet of crimes. Since Nonindicted 4 worked in Nonindicted Company 11 before retirement from the office around 1999, there was no experience or knowledge or connection with landscaping or construction works, and even after joining Nonindicted 3, Nonindicted 3 did not perform the duties related to landscaping or order for construction works.

④ Nonindicted 3 stated at the investigative agency that “I think I would have tried to follow various landscaping works, including government-funded landscaping works, or to register it as a collaborative company with various construction companies using the status of assistant to the National Assembly members.” “I think I would also endeavor to make efforts to do so even for government-funded landscaping works.” and “I would like to see that I would have been employed in a low-income company. I would like to see that I would have friened and friened with the thickness of assistant to the National Assembly members. I would have friened 4).”

⑤ Nonindicted Co. 8 operated by Nonindicted Co. 3 had experience in giving orders for government-funded construction works several times, and Nonindicted Co. 10 acquired a general construction license that allows 200 million won or more to take orders for government-funded construction works after Nonindicted Co. 4’s employment.

④ In the investigative agency and the court of the court below, Nonindicted 3 paid KRW 4 million each month in the name of Nonindicted Company 8 and Nonindicted Company 9, respectively, to Nonindicted 4 in the name of Nonindicted Company 3, which was operated by Nonindicted Company 3. The reason why the payment was made in installments was because the representative director was higher than his/her pay, which is the cause of the occurrence of the problem.

7. It is true that the Defendant made a suggestion at an investigative agency that he would have been able to give her a fling or commuting to his workplace when she mentions her low her at the bar, and that she would have been able to do so if she would have been able to do so.” “I think that she would have a frank like the horses of Nonindicted 3, and that she would have a fings at the bar, not that she would have her fling at the bar, and that she asked her to do so at a low level: Provided, That as at the time of Nonindicted 3’s fry, I am to the extent that she would have been able to do so if she would have had a fling, if she would have been fested at the time, she would have a fry,” and that “

The statement was stated as follows.

In full view of these facts, the defendant was aware that he was aware of the status of his assistant to his member of the National Assembly that he would act positively in the employment of his member of the National Assembly, and that Nonindicted 3 was aware of what he would be, and that Nonindicted 3 was clearly aware that he would offer money for the monthly salary to his member of the National Assembly, or that he would be aware that he would offer money for the monthly salary to his member of the National Assembly. Under this recognition, Nonindicted 4, who was put to Nonindicted 3, would give the contact information of Nonindicted 4, who was put to Nonindicted 3, and let Nonindicted 3 give a total of KRW 186,256,960, was made under the pretext of solicitation or mediation about the orders for the government-funded work, which is the case or the work which the public official handles, and in such case, even if the public official was not specified, it does not affect the formation of the offense of the Attorney-at-Law Act, and thus, the conjunctive facts charged is sufficiently convicted.

Therefore, there is no promise that Nonindicted 3 would be ordered to receive the government-funded landscaping work, and the defendant's assertion that Nonindicted 3's enterprise is not an enterprise specialized in the government-funded landscaping work, and thus it cannot be deemed that it solicited or mediated the affairs handled by the public official.

D. Judgment on the Defendant’s assertion of mistake of facts

1) Part concerning the receipt of money and valuables from Nonindicted 1 (the changed part concerning the indictment to the violation of the Attorney-at-Law Act in the trial)

A) Summary of the facts charged

From October 209 to August 201, 201, the Defendant received solicitation from Nonindicted 2, the president of the ○○○ Group, and Nonindicted 1, who operated Nonindicted 15 Co. 1, to the effect that “The Defendant would be free from the investigation of the origin of the ○○ Group, which was going from September 2009 to December 2009, and at the same time, from Nonindicted 16 Co. 16 and Nonindicted Co. 17 Co. 2, who was under the supervision of the Korea Development Bank, to the effect that “the Defendant would be free from the creative inspection of the origin of the ○○ Group, and would be free from Nonindicted 2.”

The Defendant received, in return for the above solicitation, USD 10,00,000 U.S. dollars ($ 95,000,000) from Nonindicted Party 1, from December 2009 to January 201, 201, cash KRW 300,000 from June 201 to July 201, and ② KRW 100,000 in cash from June 201 to July 201, ③ KRW 5,00,000,000 per hand hand hand hand hand hand hand hand hand hand hand hand hand hand hand hand hand hand hand hand hand hand hand hand hand over on the ker belt around November 201, and ④ KRW 110,00,00 around June 20, 201, respectively.

As a result, the Defendant received from Nonindicted Party 1 a cash of KRW 50 million and USD 90,000 and one hand hand hand hand hand hand hand knb on the belt under the pretext of soliciting or arranging the case or affairs handled by the public prosecutor and the executive officer of the Korea Development Bank who is deemed a public official.

B) Whether Non-Indicted 1 received a solicitation from Non-Indicted 1 regarding the investigation of the place of origin.

In full view of the evidence, the lower court determined that: (a) around the end of 2009 upon Nonindicted 1’s request from Nonindicted 2 to the effect that “○○○○ Group was under investigation by prosecution; (b) Nonindicted 16 Company was forced by the Korea Development Bank; and (c) Nonindicted 16 Company was prevented from paying transaction fees to Nonindicted 17 Company; and (d) at the request of Nonindicted 2, the Defendant continued to make a solicitation related to the ○○○○ Group even with the Defendant’s delivery of money over several times; (b) Nonindicted 1 began to provide money and valuables to the Defendant from the time when it was requested by Nonindicted 200,000 won to Nonindicted 1; and (c) Nonindicted 2,000,000 won, which was difficult for Nonindicted 1 to receive from Nonindicted 2, 200,000 won, for the first time, 300,000 won, which was 30,000 won or more, for the Defendant’s first time to have been given money to Nonindicted 1 Company.

In full view of the evidence duly adopted and examined by the lower court and the trial court’s findings, it is justifiable to find the lower court’s findings. In addition, the lower court’s determination that Nonindicted 18, who was the chief of the Korea Development Bank’s prosecutor, was requested by the Defendant at the prosecutor’s office to investigate the origin of the project and to arrange the progress of the work of the ○○○○○○ Group, and was requested by Nonindicted 1 to receive money from Nonindicted 1 in return, on the ground that “this is not simply determined because it is difficult for the company to conduct the work with the overall road map at the bank, because it is difficult for him to conduct the work.” In so doing, the lower court’s determination that the Defendant received money from Nonindicted 1 in return for Nonindicted 1’s request for the investigation of the origin of the project and the solicitation and mediation for the progress of the work of the ○○○○ Group.”

Therefore, the defendant's argument in this part of the appeal is rejected.

C) Whether Nonindicted 1 received USD 90,00 from Nonindicted 1

(1) The judgment of the court below

Based on the following circumstances, the lower court recognized that the Defendant received USD 90,00 from Nonindicted 1 on July 201, 201.

① On November 27, 2011, Nonindicted Party 1 consistently stated the facts of delivery of USD 90,00 from the time when Nonindicted Party 1 was examined as the 7th interrogation to the present court, and it is difficult to find any special contradictions in the above statement itself.

② Nonindicted 1’s statement on the circumstances of granting 90,00 U.S. dollars, such as source of US$90,00, the packaging condition of money, and the situation at the time of giving money to the Defendant, is considerably specific and difficult to experience directly.

③ 피고인의 진술에 따르더라도 피고인은 ‘2011. 6. 말경 내지 2011. 7. 초순경’ 국회 예산 관련 업무로 굉장히 바빴다는 것인데, 이는 공소외 1의 진술에서 확인되는 금원 교부 당시의 정황과도 일부 부합하는 것이다.

④ It is difficult for Nonindicted 1 to find out the reason why he could not find the Defendant, and Nonindicted 1 did not state the fact that money and valuables were given to the Defendant to protect the Defendant during the first investigation by the prosecution, and Nonindicted 1 stated the fact that money and valuables were given to him when it is recognized as a consideration for the Defendant’s duty, who is a public official, can be punished as a crime of offering of bribe.

(2) Judgment of the court below

The conviction in a criminal trial shall be based on strict evidence with probative value, which makes it possible for a judge to have the truth that the facts charged are true beyond a reasonable doubt, and the conviction shall not be ruled out unless it is ruled out. In the case of bribery, in a case where the defendant, who was designated as the bribe, denies the fact of the bribery and there is no material evidence, such as objective materials to support it, the statement made by the lender and the sender shall be admissible, and the credibility should be ensured to exclude a reasonable doubt as well as the admissibility of evidence. In determining the credibility of the statement, it shall also be examined the rationality, objective reasonableness, consistency before and after the contents of the statement (Supreme Court Decision 2005Do1904 Decided May 26, 2006).

In light of the circumstances pointed out by the lower court, it is true that there is a doubt that the Defendant is not in receipt of USD 90,00 from Nonindicted 1 in light of the following: (a) Nonindicted 1’s statement is the sole evidence that corresponds to the fact that the Defendant received USD 90,00 from Nonindicted 1 on July 201, 201; (b) Nonindicted 1 stated that the Defendant consistently delivered USD 90,00 from the prosecutor’s office to the court of the lower court from November 27, 2011.

However, the following circumstances acknowledged by the record: (a) around May 201 or around June 2011, Nonindicted Party 2 told the Defendant and Nonindicted Party 1 to the effect that he provided money and valuables or entertainments to the Vice Minister of Culture, Sports and Tourism and the Vice Minister of Knowledge Economy before Nonindicted Party 19, before Nonindicted Party 20; (b) not only was eight months from November 201, when the Defendant finally received KRW 100 million from Nonindicted Party 1, but also Nonindicted Party 2 received USD 90,00 in the instant case without any distance from the perspective of the fact that it was difficult for the Defendant to receive such money and valuables from the media; (c) there was no evidence that the Defendant possessed or consumed USD 90,00,00 or exchanged them; and (d) there was no reasonable doubt that the Defendant received money and valuables from Nonindicted Party 1 to 90,000,000 from the investigative agency to this court; and (d) there was no reasonable doubt that Nonindicted Party 2 received money and valuables from Nonindicted Party 12.

Nevertheless, the judgment of the court below which concluded that the defendant received USD 90,00 from the non-indicted 1 on July 201, 201, was erroneous, and the defendant's ground of appeal pointing this out is with merit.

D) Whether the acceptance of money and other valuables under the pretext of arranging the work of the Korea Development Bank violates the Attorney-at-Law Act

(1) Defendant’s assertion

The work performed by an executive officer of the Industrial Bank is not a case or work performed by a public official provided for in Article 111 (1) of the Attorney-at-Law Act.

(2) Determination

Article 111 (1) of the Attorney-at-Law Act provides that "any person who receives or promises to receive money, valuables, entertainment or other benefits under the pretext of making a solicitation or mediation with respect to cases or affairs handled by a public official, or any person who causes or promises to give them to a third party, shall be punished by imprisonment for not more than five years or by a fine not exceeding 10 million won. In this case, a fine and imprisonment may be imposed concurrently." Article 111 (2) of the same Act provides that "any person who is deemed a public official in the application of penal provisions under Articles 129 through 132 of the Criminal Act in accordance with other Acts shall be deemed a public official under paragraph (1)." Article 17 of the Korea Development Bank Act provides that "the officers of the Korea Development Bank shall be deemed public officials in the application of penal provisions under the Criminal Act or other Acts."

In full view of these provisions, an officer of the Korea Development Bank who is considered as a public official in the application of the penal provisions of Articles 129 through 132 of the Criminal Act pursuant to Article 17 of the Korea Development Bank Act shall be a public official under Article 111(2) of the Attorney-at-Law Act, and therefore, the duties of the Work of the Korea Development Bank for the ○○○ Group in charge of the Korea Development Bank constitutes a public official under Article 111(1) of the Attorney-at-Law Act.

Therefore, this part of the defendant's assertion cannot be accepted because it constitutes a violation of the Attorney-at-Law Act to receive money under the pretext of arranging the work of the Korea Development Bank.

2) The portion of money and valuables received from Nonindicted 7

A) Whether the other party to good offices is a public official

For the purpose of arranging matters falling under the duties of public officials under Article 3 of the Act on the Aggravated Punishment, etc. of Specific Crimes, money and valuables or other benefits shall be given and received under the pretext of arranging matters belonging to the duties of public officials, and the contents of the good offices shall not be specified specifically. However, in order for the good offices to be established, matters to be mediated belong to the duties of public officials, and matters to be mediated such as money and other valuables are related to the good offices of public officials, and a certain degree of the pretext of receiving money and other valuables must be specified. Further, if the money and other valuables are well seen by the money and other valuables, etc. to the money and other valuables, etc. to the extent that the money and other valuables, etc. are not likely to receive any help or incur any loss, and the money and other valuables, etc. shall also be delivered to the money and other valuables, etc. to the money and other valuables, etc. to the extent that the money and other valuables, etc. are given and received by the donor with such expectation, it cannot be deemed that the crime of good offices is established (see, etc.).

In full view of the evidence duly adopted and examined by the court below, as to the name of money and valuables provided by the investigation agency to the defendant relatively consistent from the investigation agency to the court below, the defendant stated that "the defendant gave money and valuables to the defendant to receive assistance from the defendant because he was the assistant of the non-indicted 21 member who was the actual director of the current government," and "the non-indicted 7, at the time, did not strengthen supervision over the savings bank because it was difficult for the savings bank industry as well as the entire savings bank industry to take advantage of the benefits, and delivered money to the financial authorities so that savings banks can be able to prepare for difficulties with sufficient time through the adjustment of BIS ratio, etc." and the defendant also stated in the investigation agency that "the non-indicted 7, the chairperson of the non-indicted 7, at the time, told the financial authorities about the savings bank so that it was too much less than alleviated to regulate the savings bank."

section 23 of this title.

In addition, according to the Act on the Establishment, etc. of Financial Services Commission, matters concerning the supervision, inspection, and restriction of financial institutions, including savings banks, and matters concerning authorization and permission of financial institutions establishment, merger, conversion, transfer of business, transfer of business, acquisition of business, management, etc., are affairs under the jurisdiction of the Financial Services Commission. The Financial Supervisory Service is conducting the inspection of the business and financial status of mutual savings banks under the guidance and supervision of the Financial Services Commission, and thus the final decision on the inspection of the business and financial status of mutual savings banks is made by the Financial Services Commission. The Financial Services Commission is a public official of the central administrative agency, and the employees of the Financial Services Commission as the members of nine

Comprehensively taking account of these circumstances, since the matters such as mitigation of regulation on savings banks that the defendant was requested by Nonindicted 7 to make a solicitation or mediation are affairs under the jurisdiction of the Financial Services Commission, the defendant is deemed to have been requested by Nonindicted 7 to arrange matters belonging to his duties.

Therefore, we cannot accept this part of the defendant's ground of appeal.

B) Whether to pay for the solicitation

In full view of the evidence, the lower court determined that: (a) as seen earlier, Nonindicted 7 offered money to the financial related authorities such as not only Nonindicted 6 savings banks but also the entire savings bank industry; (b) did not strengthen the supervision over savings banks; and (c) did not provide money to savings banks so that savings banks may have sufficient time to cope with difficulties; (b) the Defendant also stated to the purport of recognizing Nonindicted 7 solicitation, such as Nonindicted 7’s speech from Nonindicted 6 savings banks to the financial authorities; (c) the Defendant, through the members of the National Assembly Standing Committee in charge of savings banks, asked the Financial Supervisory Service of the contents related to savings banks; and (d) determined that it was difficult for the Defendant to recognize that there was money and valuables received from Nonindicted 6 savings banks in return for the strong financial soundness of the savings bank; and (e) the Defendant could not have any money and valuables received from Nonindicted 700 million won in total; and (e) determined that there was no reason to recognize that there was money and valuables to be more than 700 million won in the savings bank at the time of the National Assembly.

In full view of the evidence duly admitted and examined by the lower court, the fact-finding and judgment of the lower court are justifiable.

Therefore, the defendant's argument on this part of the appeal cannot be accepted.

3) As to the violation of the Political Funds Act

The lower court determined that: (a) Nonindicted 5, who delivered money and valuables to the Defendant, stated in the investigative agency that “the Defendant used the money to be used for the activities as an assistant to a member of the National Assembly; (b) Nonindicted 5, who was an assistant to a member of the National Assembly, provided support for political activities; and (c) the Defendant was carrying out the duties of handling civil petitions as an assistant to a member of the National Assembly; (c) the expenses incurred in meeting persons related to civil petitions or reporters, etc. in order to carry out the Defendant’s duties, such as civil petitions; and (d) the Defendant’s status and the contents of his duties cannot be easily distinguished from the Defendant’s external activities, even if it appears that the part related to political activities is more than the part related to social activities; and (d) the Defendant received money from Nonindicted 5 by withdrawing the money deposited in the above accounts after Nonindicted 22’s passbook and cash card from Nonindicted 5; and (e) the Defendant did not have any legitimate reason to choose political activities from the National Assembly member of the National Assembly.

In full view of the evidence duly admitted and examined by the court below, the fact-finding by the court below is justified. Further, the defendant served as a secretary or assistant of a member of the National Assembly for 16 years from July 1, 1996 when he started to serve as a secretary or assistant of the member of the National Assembly from January 1, 2012, and at the time of receiving the money in this case, he takes charge of only simple and mechanical work among the assistant duties for the member of the National Assembly, and takes charge of the remaining assistant and secretary who assist the same member of the National Assembly as an assistant, and takes charge of other assistant and secretary who assist the member of the National Assembly as an assistant for the member of the National Assembly, and meet with the reporter as well as the civil petitioner who cannot be neglected to meet the political foundation of the member of the National Assembly while assisting the member of the National Assembly from time to time, the judgment of the court below is just and acceptable in view of the following facts.

Therefore, the defendant's argument on this part of the appeal cannot be accepted.

3. Conclusion

Therefore, among the judgment below, there are reasons for reversal as seen above, and the part of acquittal among the judgment below is not acceptable with the prosecutor's grounds for appeal. However, since the court below found the conjunctive charges added in accordance with changes in indictment in the indictment, it is not possible to escape from reversal. Thus, the judgment of the court below is reversed in its entirety and it is again decided as follows, after hearing, pursuant to Article 364 (2) of the Criminal Procedure Act without examining the argument of unfair sentencing by the defendant

Criminal facts

The facts constituting an offense acknowledged by this court are as stated in the corresponding column of the judgment of the court below, except for the deletion of Section 1. A of the facts constituting an offense of the court below [201Gohap 1621] and addition of the facts constituting an offense of the court below and the facts charged under Section 2. C. 1 of the above facts constituting an offense, and therefore, they are quoted as they are in accordance with Article

[Violation of the Attorney-at-Law Act following Receipt of Money from Non-Party 1]

The Defendant received cash KRW 100,000,000 from Nonindicted 1 in return for the above solicitation at the coffee shop of “Copi hotel” in Yeongdeungpo-gu Seoul Metropolitan City, and KRW 300,000,000 from Haman on December 2009 to Haman on January 2010, ② cash KRW 100,000 between June 201 and July 2010, ③ KRW 5,00,000,000,000,000,000 around November 201, 2010.

As a result, the Defendant received from Nonindicted Party 1 a hand-on 50 million won in cash and a hand-on knick belt under the pretext of soliciting or arranging the cases or affairs handled by the officers of the Korea Development Bank who are deemed public officials and public officials of the prosecution.

Summary of Evidence

The summary of the evidence of the facts constituting an offense acknowledged by this court is changed to [201 High Court 1621] The summary of the evidence [201 High Court 1] of the judgment of the court below [1] [1] of the court below's [1] [1] of the violation of the Attorney-at-Law Act following the receipt of money from non-indicted 1] and added "1. Non-indicted 18's prosecutor's statement" to the relevant items of evidence, and except for addition of the following items, it is identical to each corresponding column of the court below's judgment, thereby

【Violation of Attorney-at-Law following Receipt of Money from Non-Party 3】

1. The defendant's partial statement in the original judgment and in the original trial;

1. Part of the witness Nonindicted 3’s statement in the original trial

1. Examination protocol of the accused by prosecution;

1. Statement by the prosecutor about Nonindicted 3

1. Details of Nonindicted 4’s account transactions

Application of Statutes

1. Article relevant to the facts constituting an offense and the selection of punishment;

Article 111(1) of the Attorney-at-Law Act (amended by Act No. 10522, Mar. 31, 201; hereinafter the same shall apply) (Article 111(1) of the Act on the Aggravated Punishment, etc. of Specific Crimes (Articles 111(1) and 3 of the Act on the Aggravated Punishment, etc. of Specific Crimes (Articles 111(1) and 7 of the Act on the Aggravated Punishment, etc. of Specific Crimes (Article 3(1)); Article 45(1) (Article 45(1) of the Political Funds Act (Article 5(1) of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Article 10522, Mar. 31, 201;

1. Separation of punishment;

Article 8 (3) and 8 (1) 3 of the Public Official Election Act (the violation of the Political Funds Act and the remaining crimes)

1. Aggravation of concurrent crimes (joint crimes except for the crimes of violating the Political Funds Act);

Article 37 (former part of Article 37, Article 38 (1) 2, and Article 50 of the Criminal Act (Aggravation of concurrent crimes with punishment prescribed in the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Aggravated Punishment, etc. of Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Aggravated Punishment, etc

1. Additional collection:

Article 116 of the Attorney-at-Law Act, Article 13 of the Act on the Aggravated Punishment, etc. of Specific Crimes, the latter part of Article 45(3) of the Political Funds Act, Article 10(3) and (2) of the former Act on the Aggravated Punishment, etc. of Specific Economic Crimes / [Article 116 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes : 1 billion won = (300 million + KRW 100 million + KRW 150 million + KRW 17 billion + KRW 100 million + KRW 200 million)];

Reasons for sentencing

In light of the fact that the Defendant received large amounts of political funds in return for the conciliation of duties of public officials, officers and employees of financial institutions and in return for the receipt of large amount of political funds by taking advantage of the status of assistant officers of the National Assembly members who are called a member of the political power, and that the public confidence in the overall public society is growing, the Defendant’s crime of this case, which resulted in a serious damage to the public official, especially the general public’s confidence in the performance of duties of the National Assembly members who were assisted by the Defendant, and that there is no way to deny and reflect the fact of some of his offense, etc., the Defendant should be sentenced to heavy punishment.

In addition to the above unfavorable circumstances, the defendant returned some of the money and valuables received by the defendant to the donor (the kick belt for women), the defendant has no past record of criminal punishment in addition to the previous fines twice, and the defendant's age, family relation, criminal relation, occupation, environment, motive and circumstance of the crime, means and method of the crime, and circumstances after the crime, etc. are considered as a whole, and the sentence like the order was determined.

Parts of innocence

1. The portion of violation of the Attorney-at-Law Act due to the receipt of USD 90,00 from Nonindicted 1

The summary of this part of the facts charged is that "the defendant received a delivery of USD 90,00 from Nonindicted 1 under the pretext of making a solicitation or mediation concerning the case or affairs handled by a public official of the prosecution or an executive officer of the Korea Development Bank who is deemed a public official of the Korea Development Bank who is deemed a public official of the prosecution on July 201, 201 by receiving an amount of USD 90,000 ($95,000,000) from Nonindicted 1 in return for the same solicitation as stated in paragraph (d) (i) of the above Article 25 of the Criminal Procedure Act, since it constitutes a case where there is no proof of a crime for the same reason as stated in paragraph (d) of the above Article 25 of the same Act, and thus, the defendant must be acquitted pursuant to the latter part of Article 325 of the Criminal Procedure Act, but it shall not be convicted of the violation of the Attorney-at-Law Act in a comprehensive crime.

2. The part concerning violation of the Act on Special Cases, which is the primary charge following the receipt of money from Nonindicted 3

The summary of this part of the facts charged is the same as the above 2.b.1, and the above 2.2.b.2, which is without proof of a crime, should be pronounced not guilty pursuant to the latter part of Article 325 of the Criminal Procedure Act, but if the court found the defendant guilty of the violation of the Attorney-at-Law Act, which is the preliminary facts charged, it shall not be sentenced not

Attachment omitted

Judges Yellow Hahn (Presiding Judge)

1) It is only called a violation of special law.

Note 2) No. 2, 578 of the evidence records

Note 3) No. 2, 579 of the evidence records

Note 4) No. 2, 581 of the evidence records

Note 5) 130 pages of the trial records

Note 6) Evidence No. 1, 260 pages

Note 7) Evidence No. 1, 323, 324, 2, 707, 766 pages of evidence records

8) The Defendant returned her hand her hand her hand her hand she received from Nonindicted Party 1 before the investigation is commenced to Nonindicted Party 1 (Evidence No. 1 394 of the Evidence Record), and the Defendant cannot confiscate or collect the value of her hand her hand her hand her hand her hand she received from Nonindicted Party 1 (Evidence No. 1 of the Evidence No. 1 of the Evidence No. 394), and since Nonindicted Party 3 received 186,256,960 won from Nonindicted Party 4, the Defendant cannot collect the money from the Defendant. Meanwhile, Nonindicted Party 1 is not entitled to collect the money from the Defendant since her hand she received from Nonindicted Party 3 of the 300 million won, and KRW 15,000,000,000 from the 10,000 won paid around June 20, 201 or around July 20, the money was collected from each of the above Defendant’s consumption method.

심급 사건

-서울중앙지방법원 2012.8.17.선고 2011고합1621,2012고합702(병합)

서울고등법원 2013.3.22.선고 2012노2688

-대법원 2013.7.12.선고 2013도3940

원심판결

-서울중앙지방법원 2012. 8. 17. 선고 2011고합1621, 2012고합702(병합) 판결

본문참조판례

-2011고합1621

-대법원 2004. 11. 12. 선고 2004도5655 판결

-대법원 2004. 3. 26. 선고 2003도8077 판결

-대법원 2006. 5. 26. 선고 2005도1904 판결

-서울중앙지방법원 2012. 8. 17. 선고 2011고합1621,2012고합702(병합) 판결