[1] Meaning of "mediation" under Article 7 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes, and standard for determining whether there is a quid pro quo relationship between the referral of matters belonging to duties of officers and employees of financial institutions

[2] The method of calculating the amount of collection under Article 10 (3) and (2) of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes

[1] Article 7 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes / [2] Article 10 (2) and (3) of the Aggravated Punishment, etc. of Specific Economic Crimes Act

[1] Supreme Court Decision 2004Do8780 Decided June 24, 2005, Supreme Court Decision 2007Do8117 Decided January 31, 2008 (Gong2008Sang, 342)

Defendant

Defendant

Law Firm Han, Attorney Ahn Byung-hee

Seoul High Court Decision 2011No1863 decided November 11, 2011

Of the judgment below, the part concerning additional collection is reversed. 140,000,000 won shall be collected from the defendant. The remaining appeals by the defendant are dismissed.

The grounds of appeal are examined.

1. As to the establishment of the crime of good offices and acceptance

“Good offices” under Article 7 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes refer to “an act of arranging or promoting convenience among certain persons and the other party with regard to a certain matter.” As such, not only a case where a certain person transfers the solicitation to the other party as it is, but also an act of arranging the solicitation on behalf of the other party, and also where the act of arranging the solicitation is subject to past or lawful act. If a person receives money or other valuables under the above pretext of arranging, the above crime is established regardless of the actual act of arranging. On the other hand, whether there is a quid pro quo relationship between an employee and an employee of a financial institution and the money or other valuables received shall be determined by comprehensively taking into account all the circumstances such as the contents of the relevant good offices, whether there is a quid pro quo relationship between a broker and an interest provider, and if there is an indivisible relationship between the good offices and the received money or valuables, it shall be deemed that there is no possibility that the said money or other valuables will be provided to the one who has received it in an indivisible way, and there is no way to view that it is an indivisible.

The court below acknowledged facts as stated in its holding after citing the reasoning of the judgment of the court of first instance or compiling the evidence adopted by the judgment of the court of first instance, and found the defendant guilty of the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes against the defendant, on the grounds that the defendant's total amount of 154,00,000 won received from the non-indicted 1 et al. using the connection and influence of the Financial Supervisory Service in order for the non-indicted 2 corporation, etc. to accept the registration statement easily or at the time when necessary, and the nature of the consideration for review services is indivisible. The court below found the defendant guilty.

In light of the above legal principles, the court below's measures are just and acceptable. Contrary to the allegations in the grounds of appeal, there were no errors by misapprehending the legal principles on the good offices under Article 7 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes, the admissibility of hearsay evidence, and the presumption of innocence, or by exceeding the bounds of the principle of free evaluation of evidence and logical and empirical rules, or by

2. As to collection

The lower court ordered the collection of KRW 142,844,917, out of the amount received by the Defendant as the instant crime.

However, the necessary additional collection under the provisions of Article 10(3) and (2) of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes is intended to deprive a criminal or a third party of money, valuables, and other benefits and prevent the defendant from possessing unlawful profits. Thus, the defendant shall be exempted from the additional collection unless there are special circumstances that, in case where the person who received the brokerage charge receives the service contract between the client and the client to arrange matters belonging to the duties of the officers and employees of the financial institution and to pay the consideration for the act of mediation, the amount equivalent to the value-added tax can be refunded. According to the records, the defendant can be found to have received 154,00,000 won in the form of the review service on the registration statement from the non-indicted 1, etc. and received 154,00,000 won in the form of the value-added tax, and since there is no evidence to acknowledge that the defendant has a reason to receive the tax amount, the amount of additional collection shall be deemed to have been collected from the defendant as the crime in this case.

Nevertheless, the court below calculated the amount of the value-added tax as above by deducting only KRW 11,155,083, which was actually paid by the defendant from the amount received from the non-indicted 1, etc., which was deducted due to a reason unrelated to the crime of this case. The court below erred in the misapprehension of legal principles as to the calculation of the amount of the additional tax, and it is obvious that such illegality had influenced the judgment

3. Conclusion

Therefore, pursuant to Articles 391 and 396(1) of the Criminal Procedure Act, the part concerning the collection of additional charges among the judgment below is reversed, and this case is sufficient for the Supreme Court to directly render a judgment. As seen earlier, 140,000 won shall be additionally collected from the defendant pursuant to Article 10(3) and (2) of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes. The remaining grounds for appeal by the defendant are dismissed as it is without merit. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Sang-hoon (Presiding Justice)