2017No577 Indication of intent to offer a bribe

A

Both parties

Residents' file (prosecution) and stuffing (public trial)

Law firm*

Busan District Court Decision 2017Gohap313 Decided September 22, 2017

January 11, 2018

All appeals filed by the defendant and prosecutor are dismissed.

1. Summary of grounds for appeal;

A. Defendant

(1) misunderstanding of facts

As stated in the facts charged in this case, the Defendant requested B to provide C with KRW 20 million in return for the waiver of the withdrawal of the chairman of the Busan Jin-gu Council. Each statement in the investigation agency and the court of original instance, which correspond to the facts charged in this case, in the following circumstances: (a) the date and place that B made the said request from the Defendant are different from each other; and (b) the amount of the bribe to be given is not correct as 20 million won or 2.

설령 피고인이 B에게 위와 같은 부탁의 말을 한 것이 사실이라고 하더라도 그 직후 피고인와 B 사이에 있었던 대화 즉, B가 돈이 있느냐고 묻자 피고인이 "돈 없다. 되면 그만이지 돈이 어딨노 "라고 대답하였고, B도 원심법정에서 그와 같은 대화가 있 었다고 진술하고 있는 점 등에 비추어, 피고인이 B에게 하였다는 위와 같은 부탁은 농 담 내지 비진의표시에 해당하므로, 피고인에게 뇌물공여 의사표시에 대한 고의가 있었 다고 볼 수 없다.

Nevertheless, the court below found the defendant guilty of the above facts charged by taking the statements of B without credibility on the grounds as stated in its reasoning. Thus, the court below erred by misunderstanding the facts, which affected the conclusion of the judgment.

2) Unreasonable sentencing

The punishment (fine 5 million won) imposed on the defendant by the court below is too unreasonable.

(b) A prosecutor;

The sentence imposed by the court below on the defendant is too uneasible and unfair.

2. Determination

A. As to the defendant's assertion of mistake of facts

The Defendant also asserted the same purport in the lower court, and on the basis of the circumstances acknowledged by the evidence duly admitted and examined by him, the lower court found the Defendant guilty of the facts charged on the ground that it was sufficiently recognized that the Defendant requested B, as stated in the facts charged in the instant case, to the Plaintiff, who was the Speaker of the Busan High-gu Council, to give a bribe of KRW 20 million and expressed his intent to give a bribe of KRW 20 million to C.

If the judgment of the court below is examined in comparison with the evidence duly adopted and examined, the judgment of the court below is just and it does not seem to have any illegality as alleged by the defendant, and this part of the judgment of the court below is without merit.

B. As to the assertion of unreasonable sentencing by the defendant and prosecutor

In light of the facts stated in the judgment below, the defendant expressed his intention to give a bribe of KRW 20 million to C in return for the waiver of the chairperson of the Busan Jinjin-gu Council as well as the fact that the crime of this case committed by the defendant is not less than the nature of the crime in light of the nature, means and methods, and results of the crime, and the number of the amount of the bribe. The crime of this case committed by the defendant was committed by the local government council members, which causes damage to the fairness and integrity of the execution of duties of the council members, and thus, there is no criminal conviction for the defendant, and there is no criminal conviction for the same crime, and there is no criminal conviction for the defendant (the crime of this case committed by the defendant) and the circumstances unfavorable to the defendant (the crime of this case was committed by the defendant as stated in the judgment below, and it is too unfair or unreasonable for the defendant to be punished, considering various sentencing conditions expressed in the court below and the trial process.

3. Conclusion

Therefore, the appeal filed by the defendant and the prosecutor is without merit, and all of them are dismissed in accordance with Article 364 (4) of the Criminal Procedure Act. It is so decided as per Disposition.

Kim Ho-ho (Presiding Judge)

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