(영문) 서울고등법원 2013.2.7.선고 2012노3580 판결

1. The part of the judgment of the court below against Defendant C is reversed. Defendant C shall be punished by imprisonment with prison labor for 4 years and a fine of 68 million won. Defendant C shall be confined in a workhouse for the period calculated by converting KRW 400,000 into one day if the above fine is not paid by Defendant C.

68 million won shall be additionally collected from Defendant C.

2. All appeals filed by Defendant A and B and prosecutor against the above Defendants are dismissed.

Reasons

1. Determination as to Defendant C

A. Determination of the facts that Defendant C had not received a bribe from P)

Based on its stated reasoning, the lower court found that the P’s statement consistent with this part of the facts charged is sufficiently reliable and convicted of this part of the facts charged.

In light of the following circumstances acknowledged by the evidence duly admitted by the court below, the court below's aforementioned determination is sufficiently acceptable, and there is no error of law by mistake as alleged by Defendant C, as otherwise alleged by Defendant C.

① When giving monthly money and valuables to police officers including Defendant C, P stated that the cash created by M and N was delivered through Q and Z, an employee in charge of accounting, and that the cash was delivered to KRW 1 million, KRW 2 million, and KRW 5 million at the time of the offering of monthly money and valuables. 2) This is consistent with the statement of Defendant C and C’s cell phone number from around July 2009 to around October 210, it is difficult for Defendant C to find out that there was a fact that there was a fact that the cash of KRW 1 million was stored each month, KRW 2 million, and KRW 5 million was sent to P, or that there was a fact that it was issued to P, such as Q and Q parking lot, and that there was no fact that Defendant C and C’s cell phone number were issued from around 100 to 300,000,000, respectively.

③ “M” operated by P for a long period of time for illegal business, such as sexual traffic, and even if the report was not accepted, there is no fact that Defendant C was subject to the police control during the period from the end of July 2009 to the end of February 2010 when the Defendant C received a bribe. This seems to be due to the fact that P regularly offered a bribe to police officers, such as Defendant C, etc.

B. Defendant C’s determination of the allegation of unfair sentencing on each of the above Defendants against Defendant C and the Prosecutor’s above Defendants is a police official engaged in the duty of regulating entertainment establishments, etc., and receiving a large amount of bribe, 68 million won, which is provided on a regular basis with money and valuables from the proprietor of an entertainment establishment, by receiving the money and valuables on a regular basis, and thereby significantly damaging the integrity and fairness of police officers’ performance of their duties and the social trust thereon, and thus, it is inevitable to punish

However, in full view of the following factors: (a) Defendant C appears to have not first demanded a bribe; (b) there is no record of criminal punishment; (c) it appears that Defendant C would have been given a reward of 58 times while serving as a police officer for about 30 years; (d) the health of the Defendant C with urology and urology is worse due to the Defendant C’s age, character and behavior, environment, background and background of the crime, means and consequence of the crime; and (e) the sentencing cases for all of the sentencing conditions and the same kinds of cases in the instant case, including the circumstances after the crime, etc., the sentence of imprisonment and fine of 5 years (additional 68 million won) imposed by the lower court against Defendant C is unreasonable, and therefore, the Defendant C’s assertion of unfair sentencing is reasonable, and the Prosecutor’s assertion of unfair sentencing against the Defendant is without merit.

2. Judgment on Defendant A

A. Determination on Defendant A’s assertion of misunderstanding of facts

1) As to the assertion that there was no Nos. 5, 8, 19-22 of the [Attachment 2] Nos. 5, 19-22 in the judgment of the court below, and 13 of the same title was only one million won.

A) In a case where the Defendant made a statement that acknowledged the facts charged at an investigation agency or a court in a judgment as to the number 5,8,19,20, and 22 of the table of sight (2) attached to the judgment of the court below, the credibility of the confession should be determined by taking into account whether the contents of the statement are objectively rational, what is the motive or reason for the confession, what is the reason leading up to the confession, what is the circumstance leading up to the confession, and what is either contrary to or contradictory to the confession among other evidence than the confession (see, e.g., Supreme Court Decision 2006Do5407, Nov. 23, 11).

Defendant A, at the time of interrogation of the suspect and the court of the court below, led to the confession of this part of the facts charged, and there is no circumstance to suspect the credibility thereof in the motive or circumstance of confession, and the contents of the statement do not conflict with the objective circumstances recognized by other evidence, and thus, credibility exists and there is sufficient reinforcement evidence.

Therefore, the judgment of the court below that found Defendant A guilty of this part of the facts charged is correct, and there is no error of law of misunderstanding of facts as alleged by Defendant A (the defendant A was in the trial from August 2007 to August 2007, since AF was the general secretary of the K District 2 patrol team, the defendant A did not receive money from P, but the court below was duly admitted and investigated by the evidence.

The following circumstances are as follows: ① Defendant A, at the time of investigation into the prosecution, argued that the time when he was in charge of the patrol team was around August 2006 and that the time when he was in charge of the patrol team was around 2006, and actively disputed the part concerning the acceptance of bribe [Attachment 1-4] from the beginning of April 2006 to the beginning of July 2006, Defendant A stated that “at the time when he was in charge of the general affairs until October 2007 and transferred it to AF on November 1, 2007,” and the court below stated that “at the time when he was in charge of the general affairs to AF, Defendant A did not appear to have caused mistake as to the time when he was in charge of the general affairs to BF; ② from around August 2007, 2007, Defendant B did not accept the above part of the prosecution patrol team as Defendant B’s "at the time when he was in charge of the prosecution patrol" as Defendant B’s general affairs.

In light of the fact that P consistently stated from the investigative agency to the court of original trial that it was stated that P separately delivered KRW 2,00,000 to A when it was ordered from the investigation agency to the court of original trial, it is reasonable to view that Defendant A received KRW 2,00,000,000 when it was sentenced to prosecution and explanation in 2007. In light of the records, the judgment of the court below is acceptable, and there is no error of misconception of facts as alleged by Defendant A, and there is no error of law as otherwise alleged by Defendant A.

2) As to the assertion that Defendant A received money from P as a general secretary and distributed it to the team members, Defendant A’s assertion that it should be recognized as having received only the portion actually distributed.

In the following circumstances acknowledged by the evidence duly adopted and examined by the court below, i.e., ① distribution of the amount of money received from the patrol 2 teams belonging to Defendant A to some of the police officers in the same team, i.e., distribution at least three times the amount of his share to the police officers in the same team, i.e., distribution of the team leader or the district ledger, and distribution ratio, etc. ii) distribution of the amount of money to the team leader or the district ledger, 14) distribution of the patrol team of the K zone : (15) distribution of the amount of money to the officers in charge of the crime of acceptance of the bribe can not be acknowledged since it appears that the officer in charge of the patrol team of the K zone excluded some of the team members from or included them in the distribution subject to the distribution subject, and 16) distribution of the money to the officers in charge of the crime of acceptance of the bribe from Defendant A, a general secretary, and ③ distribution of the total amount of money received from the police officer in charge of the crime of acceptance of the bribe.

B. Determination on the prosecutor's assertion of mistake of facts (as to the attached table 1-4, 23-28 of the judgment of the original court)

For reasons indicated in its holding, the lower court rendered a not guilty verdict on the grounds of the judgment on the following grounds: (a) it is difficult to view that the part that Defendant A received a total of KRW 16 million in 10 times as shown in the table of sight (2) Nos. 1-4 and 23-28 as indicated in the attached Table Nos. 1-28 as indicated in the judgment of the lower court; and (b) there is no other evidence to prove this part of the facts charged; and (c) in light of the records, the lower court’s determination is acceptable, and there is no error of misunderstanding of facts as alleged in the grounds for appeal. The determination on the grounds of unfair sentencing on each of the Defendant and the Defendant

The lower court sentenced Defendant A to two years of imprisonment (additional collection KRW 29 million) within the scope of the sentencing guidelines of the Supreme Court’s Sentencing Committee, taking into account the favorable or unfavorable sentencing factors as stated in its reasoning.

The above punishment sentenced by the court below is too heavy under the circumstances where the defendant A shows the level of evasion of responsibility rather than recognize and reflect the crime, and on the other hand, the defendant A did not first demand a bribe, considering the fact that it appears that the substantial part of the bribe received as a general secretary is smaller than the amount of the bribe recognized for the defendant A's actual acquisition of the bribe, by distributing it with some part of the police officers, and distributing it to the police officers in the area where entertainment business was concentrated, and receiving a large amount of bribe of 29 million won which is regularly provided with money and valuables from them, and thereby significantly damaging the integrity and fairness of police officers' performance of duties and social trust.

The argument of unfair sentencing on the defendant A and the prosecutor above cannot be accepted.

3. Judgment on Defendant B

A. Determination as to the assertion that Defendant B did not receive the sequence 8 and 14 of the table of sight (3) in the judgment of the original court)

For reasons indicated in its holding, the court below found Defendant B guilty of this part of the facts charged by deeming that it can sufficiently recognize the fact that it received money separately from P when ordering it from P. In light of the records, the court below's determination is acceptable and it cannot be said that there was an error of misunderstanding of facts as alleged by Defendant B (in particular, the following circumstances acknowledged by the evidence duly adopted and examined by the court below, i.e.,: ① Defendant B was in charge of the general affairs of the patrol team established from August 2007; ② Defendant B was in charge of the general affairs of the patrol team; ② Defendant B, the general affairs of the patrol team, AT, the patrol team, the general affairs of the patrol team, and the telephone number, etc. transferred the name of the business, the owner, and the phone number of the company; ③ was informed to the Defendant B of the monthly amount of money; ③ there was a lot of problems between them; ③ there was a situation in which the general affairs team share information, and so, the court below's determination can be accepted by deducting the money from the Defendant B, as the general affairs team.

B. Judgment on the prosecutor's assertion of mistake of facts (as to Nos. 1-5 and 20 of the attached Table 3 of the original judgment)

For reasons indicated in its holding, the lower court rendered a not guilty verdict on the grounds of the judgment on the following grounds: (a) it is difficult to view that the part that Defendant B’s statement alone received a total of KRW 12 million over six times, such as the table Nos. 1-5 and 20 attached Table Nos. 1-20 as indicated in the judgment of the lower court; and (b) it is difficult to deem that there is no other evidence to prove this part of the facts charged; and (c) in light of the records, there is no other evidence to prove this part of the facts charged, the lower court’s determination is acceptable, and there is no error of mistake of facts as alleged in the grounds for appeal. The

The lower court sentenced Defendant B to two years of imprisonment (additional Collection 28 million won) within the scope of the sentencing guidelines of the Supreme Court’s Sentencing Committee, taking into account the favorable or unfavorable sentencing factors as stated in its reasoning.

The above punishment sentenced by the court below cannot be deemed to be too severe under the circumstances under which Defendant B’s business owner and the owner of an entertainment establishment who work in the district located in the area where entertainment establishments are densely located and received money and valuables periodically from him, and thereby significantly damaging the integrity and fairness of police officer’s performance of duties and the social trust in relation thereto. On the other hand, Defendant B appears not to first demand a bribe. On the other hand, the considerable portion of the bribe that Defendant B received as a general secretary seems to be much smaller than the amount of the bribe that Defendant B acquired by distributing it to some of the police officers of the same police officer and distributing it, and the health of both sides is significantly aggravated, as alleged by the prosecutor.

We cannot accept each of the grounds for unfair sentencing on Defendant B and the prosecutor’s above Defendant.

4. Conclusion

The part of the judgment of the court below against the defendant C is reversed as there is a ground for reversal as set forth in the preceding 1.b., and it is again decided as follows.

On the other hand, each appeal filed by Defendant A and B and each appeal filed by the prosecutor against the above Defendants is dismissed on the grounds that they are without merit.

Criminal facts and summary of evidence

Since the facts charged against Defendant C and the summary of the evidence related thereto recognized by this court are the same as the corresponding column of each judgment below, they shall be quoted in accordance with Article 369 of the Criminal Procedure Act.

Application of Statutes

1. Article applicable to criminal facts;

Article 2(1)2 and (2) of the former Act on the Aggravated Punishment, etc. of Specific Crimes (Amended by Act No. 10210, Mar. 31, 2010; hereinafter the same) and Article 129(1) of the Criminal Act [Joint and Concurrent Imposition of Fines: Provided, That the upper limit of imprisonment shall be 15 years of imprisonment with labor prescribed in the main sentence of Article 42 of the former Criminal Act (Amended by Act No. 10259, Apr. 15, 2010);

1. Discretionary mitigation;

Articles 53 and 55(1)3 and 6 of the Criminal Act (the consideration of favorable circumstances shown in the preceding 1.b.)

1. Detention in a workhouse;

Articles 70 and 69(2) of the Criminal Act

1. Additional collection:

Article 134 of the Criminal Act

1. Before the reasons for sentencing, as seen in the above 1.b. above, all kinds of sentencing conditions as shown in the argument of this case, including the age, character and conduct, and environment of Defendant C, as well as various favorable or favorable circumstances, and the sentencing examples for the same kind of cases, shall be determined as ordered.

It is so decided as per Disposition for the above reasons.

Judges

Maximum Judge of the presiding judge

Judges Nown Korea

Judges Dok-woo

Note tin

1) The amount of 'Rob funds' is deducted from cash in M or N businesses by accounting officers such as Q, etc., and the above accounting office or AR (aR office) depository.

Using money to be kept in the custody of the police officer. When giving money to the police officer, it would incur money to A Q or Z at that time.

At all times, it is difficult for both persons to prepare for money. In general, from 9:0 p.m. to 10:0 p.m., Ma if the money is paid on or before the night.

(1) The term "AR" means to bring money to A Q, to leave the Z test, or to the Z in the AR Treasury, or to the Z.

I would like to prepare money from among money. I would like to receive the money and offer money to police officers. (P.)

26.The prosecutor's protocol of statement, evidence record No. 8, 16-17 pages)

2) The prosecutorial statement dated March 28, 2012 on P (Evidence No. 2, 939 of the evidence record).

3) Statement A: The president of PP set up the street funds to police officers from the beginning of each month; however, the process was PI M M parking lot or the following parking lot.

AR MR Myma business places, 1 million won, 2 million won, 3 million won, 5 million won, and 1 million won in cash, which have been brought up to 1 million won.

C. If you keep AR for a long time, you have kept the amount (No. 2, No. 914 of the Evidence Records) and I on an average monthly basis.

amounting to KRW 200 million or more for dry cash, and only delivered directly to P shall be 200 million or more for 30 million won or more for direct delivery to P

(No. 2. (No. 915 of Evidence Records)

4) Statement of the Z: The amount of money which the president of the PJ grants to the police officer only one million won or two million won if the person seen as the police officer has a female at the AR marina business establishment;

There was a case where it would be made according to the request. They may do so in the beginning of each month more than one million won or more than two million won.

5,00,000 won was prepared and brought about by police officers in uniform immediately thereafter, and made them up to AR and coffees.

E. We also worked (No. 2, No. 776-77 of the Evidence Records), “5 million won at the beginning of the month, at the beginning of the month, at least two or three times more, and one million won.

At any time, 2 million won was prepared more than 5~6 times after night 12 o'clock (No. 2, 778 pages of evidence records).

5) Evidence No. 1, 298-341 of the evidence records;

6) No. 7, 118 of the evidence records.

7) Evidence No. 1, 231-232 pages of evidence records.

8) No. 7, 24, of evidence records.

9) Evidence No. 1, 251-283 pages of evidence records.

10) Evidence No. 8, 272-274 of evidence records No. 1, 203 of the trial records

11) Evidence Nos. 8, 407 of the Evidence Record No. 8, Defendant A, at the time, detailed to what the general secretary of another team had been at the time and how changed.

was stated (Evidence No. 8, 409 pages).

12) At first right 203 pages, second right 64 pages, second right 64 of the trial records.

13) Evidence No. 9, 318 pages

14) Evidence No. 8, 272-274 pages, 327 pages, 415-417 pages, 9, 316 pages of evidence records.

15) Evidence No. 8, 272 pages, 326 pages of the evidence records.

16) No. 8, 328-330 of the evidence record No. 8. Defendant A’s prosecutor’s investigation “The total team AE of the preceding two teams is the name of the business, the place of business, and the owner at the time of the transfer;

A place where telephone numbers, ordinary personnel amounts are known, and a place where some business places do not have many problems.

I also filed a 112 report, such as the ASanma, and the place where there are many civil petitions, and the amount of money is collected because there are many concerns about the occurrence of problems.

I have stated that it does not mean that the police officer under other jurisdiction would have received the money, even if the police officer is involved (Evidence Records).

title 8 323 pages)

17) P is present at the court of the court below as a witness and “I see the witness and have a location at the team and can do so.”

He stated that he should be held from one person (No. 1, 280 of the trial record).

심급 사건

-서울중앙지방법원 2012.10.19.선고 2012고합518

서울고등법원 2013.2.7.선고 2012노3580

-대법원 2013.4.11.선고 2013도2256

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