Defendant

Military Prosecutor and Defendant

Captain Maritime Affairs and Fisheries Agency

Law Firm Jinviel, Attorneys Yoon Young-young

Mads

Ministry of National Defense General Military Court Decision 2010Ra5 decided September 10, 2010 (Jurisdiction Offices, and Confirmation according to original judgment on September 13, 2010)

All appeals by prosecutors and defendants shall be dismissed.

1. Summary of grounds for appeal;

(a) Grounds for appeal by a military prosecutor;

The gist of the grounds for appeal by the military prosecutor is that the court below violated the sentencing guidelines established by the Sentencing Committee of the Supreme Court, and there is an error of law by misapprehending the legal principles on discretionary mitigation because the reasons for discretionary mitigation are inappropriate.

(b) Reasons for appeal by the defendant

(1) Money borrowed not to be a bribe

Although the defendant received money from the non-indicted 1 for each of the facts charged of this case, it is merely an individual loan relationship and does not constitute a bribe.

(2) The absence of duty relevance;

Of the facts charged in the instant case, Nonindicted Co. 4, which was operated by Nonindicted Co. 1 as to the receipt of KRW 10,000,000 on September 3, 2003, was inevitable for the provision of convenience, such as holiday work, design change, etc. claimed by the military prosecutor without the military corporation at that time, or there is no relevance to the duty necessary for the establishment of bribery because it is not related to Nonindicted Co.

(3) Evidence and credibility

First, the statement of non-indicted 1 prepared by the military prosecutor is illegal evidence in violation of the International Judicial Assistance Act, and it is not admissible as it does not fall under the exception of the hearsay rule of Article 367 of the Military Court Act, and even if it is admitted as admissibility of domestic affairs, it cannot be used for the fact-finding

Second, although the investigation report prepared by the Prosecutor of the Daejeon District Prosecutors' Office is related to the forgery of evidence, it was erroneous in determining the nature of the money as data for the purpose of proof, and the report attached thereto was not adopted by the court below, and thus, the court below erred by violating the rules of evidence in failing to clarify the admissibility of evidence because it was the document of accusation that was not adopted by the court below.

Third, Nonindicted 5 and 3’s statements and the credibility of each written statement of the witness are rejected, and the trust of Nonindicted 6, 7 and Nonindicted 8’s statement of witness is illegal beyond the limit of the principle of free evaluation of evidence.

(4) Unreasonable sentencing

Even if the facts charged in the instant case are recognized, the sentence against the Defendant is too excessive in light of the fact that the monetary transaction between the Defendant and Nonindicted Party 1 was incurred, the period of service, the period of custody, and other normal relations.

2. Determination

A. Ex officio determination

Before determining the facts charged subject to the instant judgment, the military prosecutor asserts that the defendant, who is confined to the prison, was notified of the receipt of the appellate trial records on September 17, 2010, and that the defendant's defense counsel was appointed on October 5, 2010, and the appellate court filed the appellate brief on October 8, 2010, the defendant submitted the said appellate brief after the lapse of 20 days from the deadline for submitting the appellate brief and the appellate court, which was the appellate court, should dismiss the defendant's appeal by decision (the military prosecutor's opinion dated October 14, 2010).

Upon examining the records of this case, the notification of receipt of records in the name of the High Court for Armed Forces (369 pages of the litigation record) may be recognized as having been implemented on September 17, 2010 as the military prosecutor asserts, but the date (market price in which the above document has been received and processed to the head of the work support group of the Ministry of National Defense (the head of the operation support division) who is the addressee may be recognized as having facts (370 pages of the trial record) on September 20, 2010, which are facts (370 pages of the trial record) on September 13:17:10, and even in accordance with the military prosecutor's assertion, the submission of the statement of reasons for appeal by the defendant can be clearly recognized in the records within

B. As to whether the amount of the instant money was borrowed between the Defendant and Nonindicted Party 1

The Defendant and his defense counsel asserted that the process of giving and receiving the instant money is not good for the financial situation of Nonindicted Co. 4, which was operated by Nonindicted Co. 1, and that it was incurred in the process of lending and returning the money to Nonindicted Co. 4 through Nonindicted Co. 5, who was in charge of Nonindicted Co. 4’s official duties at the time.

In this regard, the Supreme Court held that in the case of accepting a bribe, if the receiver claims that the money received from the receiver is not a bribe but a loan, the question of whether or not the consignee borrowed the money shall be determined by comprehensively taking into account all the objective circumstances revealed by evidence such as the motive, reason for delivery, and method of receiving the money, relationship between the consignee and the lender, both positions and occupations, the necessity of borrowing the money, the possibility of borrowing the money, the amount and method of borrowing the money, the possibility of borrowing the money from the person other than the lender, the economic situation of the accepter and the amount of the borrowed money, the amount of the borrowed money, the amount of the borrowed money, the amount of the borrowed money, the amount of the borrowed money and the method, the existence of payment period and interest agreement, the possibility of compulsory execution, etc. (see, e.g., Supreme Court Decision 2007Do3943, Sept. 7, 207).

In full view of the evidence and records duly adopted and examined at the lower court and the trial. ① Even if the Defendant borrowed 00,000 won to Nonindicted 1 through Nonindicted 5, the reason why the Defendant borrowed 00,000 won to Nonindicted 4, it was alleged that the financial situation of Nonindicted 5 was not good, but it was not good for Nonindicted 4 corporation to have been given, the Defendant, who was a public official, as of the end of 2002, at the time of lending 2002 money to Nonindicted 1, who was 40,000 won, was 50,000 won or more of the monthly interest without real estate or cash, and the Defendant was 10,000 won or more of the above money to Nonindicted 50,000 won and was 10,000 won of the loan to Nonindicted 40,000 won of the loan to Nonindicted 5, who was 100,000 won or more, and the Defendant was 10,000 won of the charges.

Furthermore, Nonindicted 5 and Nonindicted 3, who testified in the court of the court below that conforms to the above argument of the Defendant, were convicted of each of the crime of offering of bribe and perjury in the Suwon District Court on January 13, 201, and the facts of the crime of perjury (the evidence record No. 509 pages) recognized as follows.

First of all, the criminal facts of perjury committed by Nonindicted 5 in the court of the court of the court below have been issued to the judge in the court of the court below: “The witness has lent the amount of 40 million won to the defendant over 10 times from 2002 to 204 to 45 million won. There was a statement from the defendant that the witness borrowed money from the defendant to use it as the operating fund of Nonindicted 4 corporation. There was a statement that the witness borrowed money from the defendant to the defendant for the purpose of using it as the operating fund of Nonindicted 5 corporation. Around September 2004 or around October 200, there was a fact that the defendant demanded the witness to repay the money that he lent to Nonindicted 4 corporation through the witness. Nonindicted 1 remitted 50 million won to the defendant on October 8, 2004.” However, the testimony was not made from the defendant 1 to the defendant on the pretext that he borrowed money from 200,000 won to 15 million won.

Next, the crime of perjury committed by Nonindicted 3 at the court of original trial: (a) Nonindicted 3 testified to the judge at the court of original trial that, like the written statement prepared and submitted on April 27, 2010, Nonindicted 3 received a confirmation of fact later by Nonindicted 1’s proposal that the witness would make a false statement to the Defendant and would make it correct. Nonindicted 1 would have the witness write down a confirmation of fact at the request of Nonindicted 1 to the witness at around October 2004, and then borrowed the bill to the Defendant by requesting the witness to pay a discount on the bill, which would have to be repaid to him/her. However, the fact is that Nonindicted 3 requested Nonindicted 1 to prepare a confirmation of fact that the original statement was opposed to the contents of the statement that was first reported by the Defendant, and that Nonindicted 1 would not have the Defendant write out the written confirmation of fact that he/she received from the attorney-at-law, and that it would not have the Defendant write out the written confirmation by mail and received it by himself/herself.

As above, the court below rejected the credibility of the above non-indicted 5 and non-indicted 3's statement, which conforms to the defendant's argument, because the above non-indicted 5 and non-indicted 3 were perjury and they were led to confessions in most of their criminal trials on perjury, and therefore, it is difficult to recognize the fact that the defendant lent the operating fund to non-indicted 4 corporation of non-indicted 5 through non-indicted 5's assertion, and there is no reason for the defendant's assertion

C. As to the duty relationship

The Defendant asserts that, among the facts charged in the instant case, Nonindicted Co. 4, which was operated by Nonindicted Co. 1, as to the receipt of KRW 10,000,000, around September 3, 2003, there was no military corporation at that time, the provision of convenience, such as holiday work, design change, etc. claimed by the military prosecutor, is inevitable or is not related to Nonindicted Co. 4 Co. , Ltd.

In light of the legal principles of the Supreme Court's decision cited by the court below, ① as in the facts charged in this case, the defendant, as in the facts charged in this case, is in charge of the duties of supervision and design of the new, repair work site supervision, change of contract, or measures taken within the above brigade, and Nonindicted 1 was in charge of the duties of the defendant, and ② as in the fact that the defendant received two money from the above Nonindicted 1, the actual operator of the government-funded 4 corporation, ② as in the fact that the defendant, who is a public official, received the money from the above Nonindicted 4 corporation in the future or from the non-indicted 1, he did not make any solicitation and even if the defendant did not contribute to the contract acceptance, and did not have any relationship with his individual duties, it can be sufficiently recognized that the relationship between the defendant's duties with the defendant's duties would be doubtful from the general society, and even if he did not receive the money under paragraph (1) of the above facts charged at the time of transfer, it is hard to say that the defendant's duty of the defendant's statement and its practice cannot be made.

D. As to the violation of the rules of evidence

(1) Statement of witness by Nonindicted 1 prepared by the military prosecutor (Evidence No. 28)

The defendant asserts that the statement of witness by Nonindicted Party 1 prepared by the military prosecutor at a local hotel at the end of the Guatemama, was not conducted according to international law and the procedure prescribed by the International Judicial Assistance Act, and that it is not admissible as illegally collected evidence pursuant to Article 359-2 of the Military Court Act, and that the hearsay evidence of Nonindicted Party 1's statement cannot be used as evidence because there is no exception prescribed by Article 367 of the same Act, and even if it is admissible for domestic affairs, it is difficult to believe that it is not reliable.

First, we examine whether the above witness statement was illegally collected evidence. ① The extradition treaty between the Republic of Korea and the end of the year is concluded, and the criminal justice cooperation treaty is not concluded. ② The International Judicial Mutual Assistance Act only provides that the prosecutor shall proceed with mutual assistance with the approval of the Minister of Justice with respect to the request for mutual assistance concerning the investigation into a foreign country (Article 29 of the same Act; hereinafter the same shall apply) and it cannot be applied since there is no provision or applicable provision to the military prosecutor, ③ the Military Court does not provide any special provision or restriction on the investigation place by the investigative agency, ④ the military prosecutor receives the witness's voluntary investigation into the witness who refuses to return to Korea at the end of the Guatemala, and it is difficult to view that the military prosecutor violated the Constitution or the Military Court Act without violating the Korean Constitution, the Military Court Act, or any other criminal law. In preparing the protocol, it cannot be viewed that the protocol violated the territorial sovereignty of the Republic of Korea).

With respect to the evidence collected in violation of the principle of exclusion of illegally collected evidence, the Supreme Court has decided as follows (Supreme Court en banc Decision 2007Do3061 Decided November 15, 2007).

In order to guarantee fundamental human rights, the normative power of the Criminal Procedure Act, which provides specific standards for search and seizure procedures, should be firmly maintained so that the Constitution declaring due process regarding search and seizure and the warrant requirement can be achieved in harmony with the ideology of protecting individual rights. Therefore, evidence collected without following the procedures prescribed by the Constitution and the Criminal Procedure Act, in principle, cannot be used as evidence for conviction because it does not follow the lawful procedures prepared to guarantee fundamental human rights. The most effective and clear response measures to restrain illegal search and seizure of an investigation agency and prevent recurrence, as well as evidence collected, shall not be used as evidence for conviction. However, in determining whether to grant admissibility of seized articles collected without following the procedures prescribed by the Act, the Constitution and the Criminal Procedure Act are an important goal and ideology that the realization of legitimate penal authority through the examination of substantial truth is to achieve through the criminal procedure procedure procedure, and thus, denying admissibility of evidence on the sole basis of evidence collected without complying with the procedure established by the Constitution and the Criminal Procedure Act, should also be deemed as having violated the legal doctrine of evidence collection and evidence in light of the substance and purpose of the criminal procedure.

Examining the admissibility of evidence of the above statement in light of the purport of the Supreme Court ruling, ① the purpose of the provision on the request for mutual assistance in an investigation in a foreign country under the International Judicial Mutual Assistance Act is to promote international cooperation in the suppression and prevention of crimes; ② the military prosecutor did not make a request for mutual assistance to the Minister of Justice for investigation in the end of the year in which the mutual assistance agreement is not concluded; ③ the degree of violation of the procedure is relatively minor; ③ the reason why the above request for mutual assistance is not made is constantly in the situation where the internal and terrorist incidents are ongoing, which are over the end of the Guatema, are classified as the country in which the peace is unstable; and most of the judicial systems are not operated without proper operation in the situation where the Ministry of Foreign Affairs and Trade designates it as a travel district; ④ The extent of infringement of the government’s sovereignty or judicial power after the completion of the above procedure provisions violates the Criminal Procedure Act; ⑤ The court below’s conclusion that the defendant’s criminal defendant’s testimony constitutes a witness of this case’s criminal procedure and its contents are sufficiently distorted to the extent of the defendant’s right of criminal investigation.

In addition, in cases under Articles 365 and 366 of the Military Court Act, if a person who is obligated to make a statement on the date of preparatory hearing or court date is unable to make a statement due to death, illness, overseas residence, unknown whereabouts, or any other similar cause, the protocol and other documents may be admitted as evidence: Provided, That the protocol and documents are admitted as evidence only if the statement or preparation has been made under particularly reliable circumstances.

In this context, the Supreme Court has to meet two requirements that "foreign residence" means that a person who needs to make a statement is unable to make a statement at a public ruling due to death, illness, residence in a foreign country, or any other reason, and that the statement or document should be made under particularly reliable circumstances, in order to establish evidence of the protocol under Article 312 of the Criminal Procedure Act or Article 313 of the same Act, as evidence. In relation to the first requirement, the term "foreign residence" is insufficient only to the existence of a person who needs a statement in a foreign country, and even if it is possible and considerable means, it is exceptionally applicable to the circumstances that make it impossible to have the person who needs the statement attend the court. In general, whether the requirements are satisfied or not, but it is always finalized through the procedure such as the dispatch of a writ of summons, etc., and thus, it is difficult for the court to acknowledge that the person who is in need of the statement is in fact unable to do so at the court's 60th of the first instance court's ruling.

Second, under Article 314 of the Criminal Procedure Act, when an original person is unable to make a statement due to death, illness, residence in a foreign country, or any other cause, the admissibility of evidence is limited to cases where the preparation of such statement or document is made under particularly reliable circumstances without the statement made by the original person. In particular, when it is made under reliable circumstances, the term "when it is made under reliable circumstances" refers to cases where there is little room for false entry in the preparation of the content of the statement or protocol or document, and there is a specific and external circumstance to guarantee the credibility or decentralization of the content of the statement (Supreme Court Decision 98Do2742 delivered on February 26, 199).

In the case of this case, it can be deemed that Nonindicted Party 1 voluntarily appeared and made statements in the form of voluntary investigation in a free atmosphere at the end of the Guatemala, and that it was conducted under particularly reliable circumstances, as it can be acknowledged that he/she directly signed and sealed the facts.

Ultimately, Article 367 of the Military Court Act, which provides an exception to the hearsay rule, recognizes admissibility of the above statement as evidence, and the judgment of the court below on the credibility of the statement does not seem to violate logical and empirical rules, and the defendant's assertion pointing this out is without merit.

As seen earlier, even if the above written statement is not admissible as evidence and the above written statement is excluded from evidence, it is sufficient to find the guilty of the charged facts of this case through the remaining evidence, so the judgment of the court below's conviction is acceptable in the conclusion that the above written statement does not affect the judgment, and the defendant's assertion pointing this out also has no merit.

(2) An investigation report (Evidence 24 No. 24) on the preparation of the Daejeon Prosecutorial Police Officer

The defendant's investigation report on the preparation of the Daejeon District Prosecutor's assistant prosecutor's report is related to the forgery of evidence, but the court below erred in determining that it is a material about the nature of the money, and the non-indicted 1's report attached thereto was not adopted by the court below, and thus, the court below erred in the misapprehension of the rules of evidence against the rules of evidence.

However, according to the records of this case, although it is evident that the purpose of proof of the above investigation report is related to forgery of evidence, although the contents of the above investigation report itself made a false testimony despite Non-Indicted 3's request to pay back the borrowed amount to the defendant at the discount of bill, and it was asked to prepare a confirmation document different from the contents of the initial information. ② As seen earlier, Non-Indicted 3 was convicted of the above perjury in Suwon District Court, as seen above, ③ as the defendant consented to the above investigation report as evidence, and the attached document was attached to the same report without the consent of the above investigation report, so long as the document is composed of the whole part of the above investigation report, it was attached to the same report, and the defendant and his defense counsel did not exclude it from the object of evidence, and as long as the defendant and the defense counsel did not agree to a specific part of the evidence, it cannot be seen that the court did not exercise its duty to request the above evidence ex officio and did not affect the conclusion of the court below.

(3) The witness Nonindicted 5 and Nonindicted 3’s statement and credibility of each witness’s certificate submitted by their defense counsel

The Defendant’s rejection of credibility solely on the ground that the lower court’s statement was a statement by a person who participated in the investigation of evidence is against logical and empirical rules.

However, in full view of the records of this case, as seen above, ① Nonindicted 5 and Nonindicted 3 consented to the fact that at the time of the examination of the Defendant in the Suwon District Court, which was the Defendant’s defendant case, Nonindicted 5 led to the confession of a criminal act of perjury and testimony to the effect that Nonindicted 3 was different from the facts, ② Nonindicted 5 and Nonindicted 3 were given a bribe to the Defendant in the above criminal trial (in the case of Nonindicted 5, approximately KRW 2910,000,000, and KRW 200,000,000,000 were denied), the judgment of the court below is acceptable, and the Defendant’s assertion pointing this out is without merit.

(4) The credibility of the statement by Nonindicted 6, 7, and 8 of the witness

The Defendant asserts that the statements made by Nonindicted 6, 7, and 8 do not directly prove the character of the money that is a bribe, and that they cannot be trusted because they were in a position of being unaware of the financial situation of Nonindicted 4 corporation at the time.

As the defendant's assertion, it is clear that the statements made by the above non-indicted 6, 7, and 8 are not evidence directly proving the character of the money that is a bribe, but the circumstances that the financial situation of the non-indicted 4 corporation at the time had been inside of the financial situation of the non-indicted 4 corporation, as seen above, are merely circumstances about whether the defendant had to borrow the operating fund, and the court below is somewhat persuasive and it is not acceptable that the defendant's financial situation was the basis for recognizing the circumstances that the financial situation of the non-indicted 4 corporation was good, but it is recognized that it was difficult for the defendant to believe that he borrowed a lot of money, so the defendant's argument pointing this out is without merit.

(5) As to a certified copy of the protocol of search, seizure, and examination of evidence prepared by the military judicial police officer (third time)

The Defendant asserts that the details of the Defendant’s borrowed account subject to the above search and seizure prove the borrowed relationship with Nonindicted Party 1.

However, as seen above, ① the Defendant’s statement was reversed as to the course and method of receiving the funds in this case between the Defendant and Nonindicted 1; ② Nonindicted 5 and Nonindicted 3 were found to have been perjury in the Suwon District Court’s inner branch; ③ the Defendant traded via a borrowed account, asserting that it was a legitimate private-use relationship; ③ the details of deposit withdrawal by Nonindicted 5 and 3, etc., which were convicted of the Defendant; ④ if the Defendant lent the funds to Nonindicted 4 Company’s operation fund, he should deposit the funds to Nonindicted 1 or the above Company’s account; however, the Defendant transferred the funds to Nonindicted 10, etc., a third party, despite the fact that the judgment of the lower court is acceptable; and there is no reason to believe that the Defendant exceeded the bounds of the principle of free evaluation of evidence because it did not violate the logical and empirical rules.

F. As to the sentencing

Before determining the sentencing of the lower court, the military prosecutor asserts that the sentence determined by the lower court is unlawful despite the absence of reasonable grounds for discretionary mitigation, even though the sentence is inconsistent with the sentencing guidelines of the Supreme Court.

However, the sentencing criteria set by the Supreme Court is based on the Court Organization Act, but the court below and the trial court except for the fact that the court of final appeal are the Supreme Court, except for the fact that they are the Supreme Court, shall render a trial according to the organization and procedures set by the Military Court Act and, unless there are specific provisions to comply with the sentencing criteria set by the Supreme Court in the Military Court Act, the sentencing criteria set by the Supreme Court cannot be deemed illegal because they violated the reference criteria for determining

In addition, the prosecutor's assertion that discretionary mitigation without a reasonable ground for discretionary mitigation is merely the purport of claiming unfair sentencing, and that discretionary mitigation under Article 52 of the Criminal Act is mitigated when there are grounds to consider the circumstances of the crime. Here, "the reason that would be considered normally" in this context means the conditions of sentencing under Article 52 of the Criminal Act, namely, the offender's age, character and conduct, intelligence and environment, relationship with the victim, motive, means and consequence of the crime, and circumstances after the crime. Such conditions of sentencing and whether it constitutes the premise thereof are recognized as broad discretionary power of the court.

In the case of this case, the legislator's opinion does not stipulate that the legislative intent should sentence the punishment for a limited term of not less than seven years under the name of the crime of this case, unless there is any reason to believe that the military prosecutor's argument has been without prison labor for not less than seven years, and that the detention has been made for not less than six months after the detention, thereby creating an opportunity to look back to his own crime (in fact, regardless of whether the defendant has been disadvantaged), and that the defendant has faithfully performed his duties during that period, is related to the character, character, intelligence and environment of the offender, and is related to the character, character, intelligence and environment of the offender. Therefore, the court below determined that the reason for discretionary mitigation and the conditions for sentencing recognized by the court below exist within a reasonable scope, and the prosecutor and the defendant's argument are not significantly unfair, and therefore,

3. Conclusion

Therefore, the appeal by the military prosecutor and defendant is dismissed in accordance with Article 430(1) of the Military Court Act.

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

Supreme Court Order Do-Jung-Jung-Jung-Jung-Jung-Jung, Do-Jung-Jung-Jak

1) Although the position of the lender and the borrower oppose the defendant's assertion on the facts charged in this case, the criteria for determining whether to recognize the basic loan owner is similar.

2) In order to deem that the above investigation activities by the military prosecutor 2. 2. Military prosecutor infringed upon the Guatemala’s sovereignty, at least Nonindicted 1’s status as a suspect in violation of the Criminal Act, etc. as prescribed by the law of the said country at the Guatemala, or was prosecuted and subject to criminal procedure, it is difficult to deem that the prosecutor of the Republic of Korea conducted the investigation and investigation, and that he infringed upon the Guatemala’s sovereignty by having the prosecutor make a statement in a separate case as a related person in the criminal justice procedure of the Republic of Korea.

3. Article 367 of the Military Court Act is set as the same.