A. Violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Embezzlement)

B. Abuse of official authority and obstruction

(c) coercion;

(d)Attempted coercion;

(e) Violation of the Act on the Aggravated Punishment, etc. of Specific Crimes;

(f) Violation of the Act on the Aggravated Punishment, etc.;

(g) Acceptance of prior bribery;

(h) Violation of the Act on the Regulation and Punishment of Criminal Proceeds Concealment;

(i) Violation of the Act on Testimony and Appraisal in the National Assembly;

1. (a)(c)(d)(h)a;

2. D. (f) g.i.b.

Defendants and Prosecutor (Defendant A)

Law Firm C (Attorney in charge D, E, F, G)

(for Defendant A)

Law Firm H (Attorney I, J, K) (Defendant B)

Attorney L, M (Defendant B)

Seoul High Court Decision 20173557 Decided May 18, 2018

February 6, 2020

The part of the original judgment against Defendant A is reversed, and that part of the case is remanded to the Seoul High Court.

Defendant B’s appeal is dismissed.

The grounds for appeal are determined.

1. As to the grounds for appeal by Defendant A

A. The crime of coercion is a crime that interferes with the exercise of a person’s right by assault or threat or that makes another person do not have a duty. Here, intimidation refers to objectively restricting the freedom of decision-making or notifying harm and injury likely to be drinking to the extent that it interferes with the freedom of decision-making. In order to recognize such intimidation, there must be a specific threat of harm and injury to the extent possible. When an offender requests the other party to provide certain profits, etc. based on his occupation or position, whether the required act constitutes a threat of harm and injury as a means of coercion is difficult to determine whether the act constitutes a crime of coercion. In light of the content and circumstance of the act, situation at the time of the request, character, career, trade relation, etc. of the offender and the other party, it may be deemed that the other party had awareness that it would have been harmful harm and injury if the other party refuses to comply with the request, and whether the perpetrator and the other party are aware of harm and injury that may have been harmful to the other party as a public official or the other party to the crime of coercion 10.

2) On the grounds as indicated in the judgment below, the court below maintained the first instance court's decision which found Defendant A to be guilty of this part of the facts charged, on the ground that Defendant A conspired with N,O, and Q Q (hereinafter " Q") Chairperson and R et al. (hereinafter " Q")'s act of hiring and assignment to the position thereof and demanding the appointment of an advertising agency of T Co., Ltd. (hereinafter "U") constitutes intimidation for the crime of coercion. However, considering the reasoning of the original judgment in light of the above legal principles, it is difficult to recognize the above demand as intimidation, i.e., notification of coercion. It is difficult to recognize the elements for establishing the crime of coercion. The demand for the provision of profits, etc. that may have a de facto influence on the President and the head of economic secretary, or a company, etc. that may have a de facto influence on his duties, is not immediately evaluated as a threat of harm and injury, and the determination should be made by comprehensively taking into account all the above circumstances into consideration.

In light of the reasoning of the judgment of the original court and the evidence duly admitted, it is difficult to view that there was such circumstance as to the content and circumstance of the speech and behavior likely to evaluate that the other party would have been aware that the other party would not comply with the said request, the situation at the time of the request, and the character, conduct, career, and mutual relationship between the perpetrator and the other party. The circumstances cited by the lower court are as follows: (a) the Defendant was aware of the relationship between the N and P and the influence of the N; (b) the personnel of the S was an exceptional case; (c) the 0-R was promoted; and (d) the R was led to the occurrence of a sense of burden on the part of the President, stating that the said R was an interest, direction, or that the president or the senior economic secretary is in a position to exercise the power to exercise the power over corporate management, such as various licenses, tax investigations, etc. are insufficient to evaluate the said request by a threat of harm and injury.

Nevertheless, solely based on the circumstances stated in its reasoning, the lower court determined that this part of the demand was a threat of harm and injury and that this part of the indictment was a crime of conspiracy of facts. In so determining, the lower court erred by misapprehending the legal doctrine on intimidation of coercion, thereby adversely affecting the judgment.

B. Part on the violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (hereinafter “Aggravated Punishment of Specific Crimes Act”) (hereinafter “Aggravated Punishment Act”)

The court below held that Defendant A, as a general supervisor of the Ministry of Culture, Sports and Tourism’s “V” in charge of the Ministry of Culture, Sports and Tourism (hereinafter “the Ministry of Culture, Sports and Tourism”), recommended that Defendant A be selected as an agency for the above event service, and as a result, W had Defendant A receive a contract for the above event’s video production service at the request of Defendant A, thereby maintaining the judgment of the court of first instance that found Defendant A guilty of this part of the facts charged. Examining the reasoning of the original judgment in light of relevant legal principles and evidence duly admitted, the court below did not err by exceeding the bounds of free evaluation of evidence due to violation of logical and empirical rules, or by misapprehending the legal principles on the requirements for the establishment of the crime of good offices and good offices, contrary to what is alleged in the grounds of appeal.

The Supreme Court precedents cited on the grounds of appeal are different from the instant case, and thus, are not appropriate to invoke the instant case.

C. Part of the violation of the Act on Regulation and Punishment of Concealment of Criminal Proceeds (hereinafter “Regulation of Concealment of Criminal Proceeds”).

The court below held that the charge of violation of the Regulation on Criminal Proceeds Concealment of this part of the crime was concealed for the purpose of pretending to be the property lawfully acquired by embezzlement B, and this cannot be deemed as a violation of the Regulation on Criminal Proceeds Concealment of this part of the crime. Since the crime of violation of the Regulation on Criminal Proceeds Concealment of this part of the crime differs from embezzlement and its constituent elements or protection, the crime of violation of the Regulation on Criminal Proceeds Concealment of this part of the crime should be deemed as a violation of the Regulation on Criminal Proceeds Concealment of this part of the crime. The court below maintained the judgment of the court of first instance which recognized this part of the charge as Eul as a crime of embezzlement of this part of the crime.Considering the reasoning of the original judgment in light of relevant legal principles and evidence duly admitted, although some of the reasoning of the court below is insufficient, it did not err by exceeding the bounds of the principle of free evaluation of evidence in violation of logical and empirical rules, or by misapprehending the legal principles on the concealment of criminal proceeds, etc., as alleged in the ground of appeal.

The Supreme Court precedents cited as the grounds for appeal are different from the instant case, and thus, are not appropriate to invoke the instant case.

2. As to Defendant B’s ground of appeal

A. The part on the acceptance of a bribe in advance and the violation of the Specific Crimes Aggravated Punishment Act (Bribery)

The court below held that Defendant B received a bribe from Y institution in response to the solicitation of the duties to be in charge as the head of the Y institution, and that it received a bribe from the Y institution while taking overall charge of the duties of the Y institution, and maintained the first instance judgment that found Defendant B guilty of this part of the facts charged. Examining the reasoning of the original judgment in light of the relevant legal principles and evidence duly admitted, the court below did not err by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by misapprehending the legal principles on job relationship in the crime of bribery, contrary to what is alleged in the grounds of appeal.

The Supreme Court precedents cited on the grounds of appeal are different from the instant case, and thus, are not appropriate to invoke the instant case.

B. The attempted part of coercion

The lower court, in order with Defendant B, AA, AB, N, and N, and secretly, conspiredd to commit this part of the attempted crime, and judged that Defendant B had functional control over the criminal act through essential contribution to the above crime, and maintained the first instance judgment convicting Defendant B of this part of the charges. Examining the reasoning of the lower judgment in light of the relevant legal principles and evidence duly admitted, the lower court did not err by misapprehending the legal doctrine on the intent of coercion, burden of proof, joint principal offender, etc., contrary to logical and empirical rules, contrary to what is alleged in the grounds of appeal.

C. The remainder of the assertion

Defendant B claims that the grounds for appeal, including the reasons for appeal written in the statement of reasons for appeal, are invoked as the grounds for appeal in the statement of reasons for appeal. However, the grounds for appeal, citing the facts expressed in the records of trial and in the examination of evidence by the court of original judgment, must explain the reasons therefor, and thus, it cannot be deemed a legitimate ground for appeal (see, e.g., Supreme Court Decision 95Do2716, Feb. 13, 1996). Accordingly, Defendant B’s remaining grounds for appeal are unlawful.

3. On the grounds of the prosecutor’s appeal, the court below held that Defendant A’s demand for appointment and assignment of S and appointment of an advertising agency by collusion with N,O, P and Q Chairperson R et al. is an act that does not fall under the general duties of the President and the senior secretary of economic affairs, and thus, it cannot be deemed an abuse of official authority. Accordingly, the court below affirmed the judgment of the court of first instance which acquitted Defendant A of this part of the facts charged with the abuse of official authority, which is in a mutually competitive relationship, on the ground that Defendant A’s above demand was not an act that does not fall under the general duties of the President and the chief secretary of economic affairs.

Examining the reasoning of the original judgment in light of relevant legal principles and records, 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, as otherwise alleged in the grounds of appeal.

4. Scope of reversal

Of the judgment of the original court, the part of coercion against Defendant A should be reversed for the same reason as set forth in the above 1-A-A, and the part of the judgment of the original court against Defendant A in relation to the above-mentioned part and the relation of concurrent crimes as set forth in the former part of Article 37 of the Criminal Act should be reversed together. Thus, the part against Defendant A in the judgment of the original court should be reversed.

5. Conclusion

Therefore, the part of the original judgment against Defendant A is reversed, and that part of the case is remanded to the lower court for further proceedings consistent with this Opinion. Defendant B’s appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Jong-soo

Justices Kwon Soon-il

Chief Justice Lee Ki-taik

Justices Park Jung-hwa