[1] In case where the consignee has kept the bribe as it is and returned it to the receiver, the other party to the confiscation and collection (=beneficiary)

[2] Purport of confiscation and collection / The meaning of the value to be collected when confiscation cannot be forfeited and the time when the amount to be collected is to be calculated (=the time judgment is rendered)

[3] The time when a final judgment became final and conclusive on the rejected portion of the grounds of final appeal on the grounds that the allegations in the grounds of final appeal were groundless (=the time when the judgment of the court of final appeal is rendered) and whether a claim in such portion

[4] Where an appeal is not filed against a part of the judgment of the court below before remanding, the validity of the part which was not claimed as the grounds of appeal in the final appeal and whether the claim as to that part may be asserted as the grounds

[1] Article 134 of the Criminal Code / [2] Article 134 of the Criminal Code / [3] Article 397 of the Criminal Code / [4] Article 397 of the Criminal Procedure

[1] [2] Supreme Court Decision 2007Do10290 Decided March 27, 2008 / [1] Supreme Court Decision 83Do2783 decided Feb. 28, 1984 (Gong1984, 644) / [2] Supreme Court Decision 91Do352 decided May 28, 1991 (Gong1991, 1824), Supreme Court Decision 2008Do694 decided Oct. 9, 2008 (Gong2008Ha, 1573) / [3/4] Supreme Court Decision 2001Do265 decided Apr. 10, 201 (Gong201, 1175) / [3] Supreme Court Decision 2007Do20984 decided Sep. 14, 2006

Defendant 1 and one other

Defendants and Special Prosecutor (Defendant 1)

Law Firm Dongbuk Asia et al.

Supreme Court Decision 2018Do13792 Decided August 29, 2019

Seoul High Court Decision 2019No1938 decided February 14, 2020

All appeals are dismissed.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. Regarding the grounds of appeal by the special prosecutor

Confiscation and additional collection refer to a person who has received a bribe and returned it to the receiver (see Supreme Court Decision 2007Do10290, Mar. 27, 2008). Meanwhile, in light of the purport of the deprivation of benefits arising from a crime and the purport of the forfeiture, and the purport of additional collection is to achieve such purpose of forfeiture, the amount to be additionally collected refers to the amount equivalent to the benefits that the criminal would have lost if he/she had been sentenced to forfeiture. Thus, the value calculation should be based on the price at the time of the declaration of adjudication, unless there are other special circumstances (see Supreme Court Decision 2008Do6944, Oct. 9, 2008).

For the reasons indicated in its holding, the lower court determined that Defendant 1’s de facto use and disposal authority of the horseing was returned to Nonindicted 1, etc., the receiver, and thus, it was not possible to collect the amount equivalent to the price of the horseing from Defendant 1. As to the sum of the amount equivalent to the price of the horseing and the amount equivalent to 2080,000,000 won, which was the date of the original judgment, the lower court additionally collected the amount converted by calculating the amount of KRW 1,299,00 per the exchange rate of KRW 1,29,00 as of February 10,

Examining the reasoning of the lower judgment in light of the aforementioned legal doctrine and evidence duly admitted, the lower court did not err in its judgment by exceeding the bounds of the principle of free evaluation of evidence inconsistent with logical and empirical rules, or by misapprehending the legal doctrine on the validity of judgment of remand, the counterpart of collection

2. As to Defendant 1’s ground of appeal

A. As to collection

On September 30, 2016, the lower court: (a) concluded an exchange agreement with Nonindicted Company 2 to add 6,70,000 tons to Salcido, and to exchange 6,70,000 tons with Shaki; and (b) deemed that at that time it was impossible for Defendant 1 to confiscate Salcido and Baa; and (c) additionally collected the amount equivalent to the price of Salcido and Baa from Defendant 1, the consignee.

Examining the reasoning of the lower judgment in light of the relevant legal doctrine and evidence duly admitted, the lower court did not err in its judgment by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by misapprehending the legal doctrine

B. Regarding the assertion of unfair sentencing

Examining various circumstances that serve as the conditions for sentencing indicated in the records, such as Defendant 1’s age, character and conduct, family relationship, environment, health condition, circumstances after the commission of the crime, etc., the lower court cannot be deemed to have sentenced Defendant 1 to 18 years of imprisonment.

C. As to the remaining grounds of appeal

The part rejected by the court of final appeal on the ground that the argument in the grounds of final appeal is groundless shall have become final and conclusive at the same time as the ruling is rendered, and the defendant shall not be allowed to lodge a judgment contrary thereto with the remanded court. Thus, the defendant shall not be allowed to make a claim in that part as the grounds of final appeal (see, e.g., Supreme Court Decisions 2005Do1247, Oct. 28, 2005; 2006Do920, May 11, 2006).

In light of the above legal principles, Defendant 1’s remaining grounds of appeal are examined. Defendant 1’s appeal as to the part on which Defendant 1 was convicted before remanding the facts charged, but the judgment of remanding the case rejected the allegation in the grounds of appeal. As such, Defendant 1’s remaining grounds of appeal disputing Defendant 1’s violation of litigation procedures, mistake of facts, misunderstanding of legal principles, etc. have already become final and conclusive, and thus, cannot be deemed legitimate grounds of appeal.

3. As to Defendant 2’s ground of appeal

Where a part of the judgment of the court below before remands a final appeal, it has the same effect as that of the final appeal, which was not filed in the final appeal, and thus, the defendant cannot make a claim as to this part as the ground for final appeal (see Supreme Court Decision 2001Do265, Apr. 10, 2001).

Therefore, among the facts charged against Defendant 2, part of conviction of abuse of authority and obstruction of another’s exercise of rights against Nonindicted 3 and Nonindicted 4, a foundation, was not brought against Defendant 2 in the final appeal of remanding judgment. Thus, Defendant 2’s allegation in the grounds of appeal cannot be a legitimate ground of appeal.

Meanwhile, Defendant 2 appealed against the entire judgment of the court below, but did not state the grounds of objection on the remaining guilty portion in the petition of appeal or the appellate brief.

4. Conclusion

Therefore, all appeals are dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Jong-hee (Presiding Justice)