[1] Method of determining whether submission of evidence related to private life can be permitted

[2] Criteria for determining whether the indictment only violates the principle of an indictment only

[3] Whether Article 84 of the Constitution of the Republic of Korea, which provides for the grounds for the constitutional obstacle to the exercise of the right to prosecute against the President who is in office, is a provision for the suspension of statute of limitations

[4] Whether the corporate tax law claims are included in the calculation of earnings and earnings

[5] The meaning of “the abuse of authority” in the abuse of authority and obstruction of another’s exercise of rights and requirements for recognizing that certain duties belong to the general official’s authority and authority / The standard for determining whether an act of having a public official assist a person in charge of business with respect to matters belonging to his/her official authority and authority constitutes “the act of having another person in charge of business with

[6] Whether the crime of violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (Loss to National Treasury, etc.) caused by embezzlement is a case where the aggravated punishment for the crime of embezzlement or occupational embezzlement under the Criminal Act is stipulated in accordance with the status of accounting personnel, and there is a seriousness of the punishment

[7] In a case where the receipt of money acquired through the crime of embezzlement is not only for the internal distribution of money acquired through a crime among co-principals through a public offering, whether the crime of bribery is established with respect to the receipt of money (negative), and the standard for determining whether the nature of the received money is deemed as a bribe or as a distribution of the amount of embezzlement

[1] Article 10 of the Constitution, Articles 307 and 308-2 of the Criminal Procedure Act / [2] Article 254 (1) and (3) of the Criminal Procedure Act, Article 118 (2) of the Regulation on Criminal Procedure / [3] Article 84 of the Constitution / [4] Article 3 of the Punishment of Tax Evaders Act, Article 40 (1) of the Corporate Tax Act / [5] Article 123 of the Criminal Act / [6] Article 5 of the Act on the Aggravated Punishment, etc. of Specific Crimes, Articles 35 (1) and 356 of the Criminal Act / [7] Articles 30, 129 (1), and 35 (1) of the Criminal Act

[1] Supreme Court Decision 2008Do3990 Decided September 9, 2010 (Gong2010Ha, 1942), Supreme Court Decision 2010Do1244 Decided November 28, 2013 (Gong2014Sang, 127) / [2] Supreme Court en banc Decision 2009Do7436 Decided October 22, 2009 (Gong209Ha, 1921), Supreme Court Decision 2012Do2957 Decided January 29, 2015 / [3] Constitutional Court en banc Decision 2007Hun-Ga296 Decided January 29, 205 (Hun-Ga, 43) / [209Hun-Ga, 2005Hun-Ga, 205Hun-Ga, 207 decided June 25, 2019)

Defendant

Defendant and Prosecutor

Attorney Choi Dong-sik et al.

Seoul High Court Decision 2018No2844 decided February 19, 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. As to the Defendant’s ground of appeal on the admissibility of common evidence and litigation conditions

(a) Illegally collected evidence;

1) Non-Indicted 1’s outer kids, etc.

On the grounds indicated in its reasoning, the lower court determined that: (a) Nonindicted 1’s right to participate in the process of analyzing and printing the information lawfully seized to Nonindicted 1 by means of copying it in the form of electromagnetic wave on January 11, 2018 when the investigative agency executed a search and seizure warrant; and (b) analyzing and printing the information seized after the completion of the search and seizure procedure at the prosecutor’s office is not an issue; and (c) the evidence alleged by the Defendant as having no relevance to the criminal facts stated in the warrant is not unlawful; and (d) the aforementioned search and seizure did not constitute a violation of the procedure regarding the right to participate as alleged by the Defendant even during the re-search of the evidence duly seized, and that the information seized by Nonindicted 1, external

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 misapprehending the legal doctrine on the rules of exclusion of illegally collected evidence, as otherwise stated in the grounds of appeal, failing to exhaust all necessary deliberations, or exceeding the bounds of the principle

2) Nonindicted 2 USB and PC

On the grounds indicated in its reasoning, the lower court determined that: (a) Nonindicted 2 voluntarily produced electronic information contained in the USB and PC on February 5, 2018 without limiting the scope thereof; and (b) the said electronic information was already seized by a search and seizure warrant on January 12, 2018 and issued a detailed list of seized information at the time of search and seizure pursuant to the above search and seizure warrant; (c) the failure to issue a separate list does not constitute an unlawful collection of evidence; (d) there is no evidence to deem that Nonindicted 2 produced and received electronic information contained in the USB of Nonindicted 2 in the office of secretary general secretary general, and thus, it is admissible as evidence based on the electronic information and evidence contained in the USB and PC.

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 misapprehending the legal doctrine on the rules of exclusion of illegally collected evidence, as otherwise stated in the grounds of appeal, failing to exhaust all necessary deliberations, or exceeding the bounds of the principle

3) Non-Indicted 3’s external humd

On the grounds indicated in its reasoning, the lower court determined that: (a) Nonindicted 3 voluntarily submitted all electronic information contained in the outer Hyde without limiting the scope on March 12, 2018; and (b) during that process, Nonindicted 3 voluntarily voluntarily submitted all the electronic information pertaining to the issuance of a list of seized articles; and (c) Nonindicted 3’s violation of the aforementioned procedural provisions cannot be deemed to have infringed on the substantive contents of due process in light of various circumstances as indicated in its reasoning, including the fact that Nonindicted 3 waived the right to participate; and (b) accordingly, it was admissible as evidence based on the electronic information contained in Nonindicted 3 external Hyde and its evidence.

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 misapprehending the legal doctrine on the rules of exclusion of illegally collected evidence, as otherwise stated in the grounds of appeal, failing to exhaust all necessary deliberations, or exceeding the bounds of the principle

4) ○ building seized articles

For the reasons indicated in its holding, the lower court determined that the seized articles and evidence based thereon are admissible, on the ground that, on January 25, 2018, the articles seized at the time of search and seizure are acknowledged as subjective and objective relations between the facts stated in the warrant and the facts stated in the warrant, and subsequent search and seizure by a separate search and seizure warrant is lawful.

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 misapprehending the legal doctrine on the rules of exclusion of illegally collected evidence, as otherwise stated in the grounds of appeal, failing to exhaust all necessary deliberations, or exceeding the bounds of the principle

5) Seized articles after theft

Guaranteeing the dignity and value of the people as human beings belongs to the basic duties of state agencies, and this ought to be realized in criminal proceedings. However, since all evidence related to the private life area of the people cannot be deemed immediately prohibited from submitting them, the court should decide whether to grant permission by balancing the benefits of protection, such as the public interest of discovery of truth in effective criminal prosecution and criminal proceedings and personal interests of individuals (see Supreme Court Decision 2010Do1244, Nov. 28, 2013).

For the reasons indicated in its holding, the lower court determined that the materials on Nonindicted Company 6 (hereinafter “Nonindicted Company 6”) which was seized by Nonindicted 4 and Nonindicted 5, were admissible in light of various circumstances as indicated in its reasoning, including the importance of evidence necessary for the prosecution of criminal prosecution and the possibility of excluding illegality, since Nonindicted 4 and Nonindicted 5 had been kept in custody, it cannot be deemed that Nonindicted Company 6 already renounced ownership of the above materials, or that there was a legal interest that is infringed upon by disclosure of personal privacy, as it does not appear to be trade secret as inside material of Nonindicted Company 6. In so doing, the lower court determined that the materials were admissible in light of various circumstances, as indicated in its reasoning.

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 misapprehending the legal doctrine regarding the rules of exclusion from illegally collected evidence, or by exceeding the bounds of the principle of free evaluation of evidence

(b) Identity and integrity of seized articles;

For the reasons indicated in its holding, the lower court determined that the admissibility of evidence is admissible on the grounds that each printed article of Nonindicted Party 1’s outer lad, etc., Nonindicted Party 2’s USB and PC, and Nonindicted Party 3’s external lads, and Nonindicted Party 6’s materials, which were seized by Nonindicted Party 4 and Nonindicted Party 5, are merely documents other than seized information storage device or its printed material, and it is difficult to deem it as evidence to verify the identity and integrity of the seized information storage device or its printed material, or subsequent to the completion of the examination of evidence after receiving the consent of evidence

Examining the reasoning of the lower judgment in light of the relevant legal principles and evidence duly admitted, the lower court did not err in its judgment by misapprehending the legal doctrine on identity and integrity as shown in the grounds of appeal, failing to exhaust all necessary deliberations, or exceeding the bounds of the principle of free evaluation of evidence in violation

(c) cancellation or withdrawal of consent to evidence;

The lower court, on the grounds indicated in its reasoning, determined that it is difficult to view that the Defendant revoked or withdrawn the consent of the evidence on the protocol in which Nonindicted 2 and Nonindicted 1’s statements were written, on the grounds that the Defendant denied the discretion and credibility of Nonindicted 2 and Nonindicted 1’s statements.

Examining the reasoning of the lower judgment in light of the relevant legal principles and evidence duly admitted, the lower court did not err in its judgment by misapprehending the legal doctrine regarding the revocation or withdrawal of consent to evidence, or by exceeding the bounds of the principle of free evaluation of evidence against logical

On the other hand, the defendant alleged that his consent to evidence related to the articles seized in Nonindicted 1, etc., Nonindicted 2 USB and PC, Nonindicted 3 outside ○○ Building, etc. was revoked or withdrawn. However, such assertion is not a legitimate ground for appeal as it is alleged in the ground of appeal that the court below specifically asserted the grounds for appeal within the period for submission of the grounds for appeal, or that the court below did not consider it as being subject to judgment ex officio. In light of relevant legal principles, the judgment of the court below is not erroneous.

D. Voluntaryness of Nonindicted 1 and Nonindicted 2’s statements

The lower court, on the grounds indicated in its reasoning, determined that the discretion of Nonindicted 1 and Nonindicted 2’s statements could be recognized.

Examining the reasoning of the lower judgment in light of the relevant legal principles and evidence duly admitted, the lower court did not err in its judgment by misapprehending the legal doctrine regarding the Voluntaryness of statements, or by exceeding the bounds of the principle of free evaluation of evidence

E. Violation of the principle of indictment only

In light of the type and contents of the crime as stated in the facts charged, the issue of violation of the principle of an indictment only shall be specifically determined in the relevant case on the basis of the contents of the documents and other things attached or quoted in the indictment, and whether the facts recorded in the indictment other than those required by statutes may hinder the judge or jury from understanding the substance of the crime (Supreme Court en banc Decision 2009Do7436 Decided October 22, 2009).

For the reasons indicated in its holding, the lower court determined that the remaining facts charged except for those violating the Presidential Records Management Act (hereinafter “Presidential Records Management Act”) were already completion of documentary evidence investigation and the court’s conviction was formed, and the prosecutor was required to indicate specific circumstances in order to clarify the Defendant’s criminal intent, conspiracy, motive and circumstance of the crime, etc., and it is not prohibited to state the facts constituting the elements of the crime, but it is not prohibited for the prosecutor to state the basic facts in the indictment. In so doing, the lower court determined that the prosecutor was written in the indictment to indicate the content of the documents related to the elements of the crime, and that the prosecutor cannot be deemed to have reached the extent that the court could be hindered in understanding the substance of the crime.

Examining the reasoning of the judgment below in light of the above legal principles, the court below did not err by misapprehending the legal principles as to the principle of an indictment only.

(f) Suspension of statute of limitations;

Article 84 of the Constitution provides that “The President shall not be charged with any criminal offense during his/her service except for the case of insurrection or foreign aggression.” This provision stipulates the grounds for hindering the exercise of the right to prosecute against the President in office. Although the statute of limitations does not expressly stipulate that the crime except for insurrection or foreign aggression during the period of his/her service is suspended, it shall be deemed that the provision on the suspension of the statute of limitations is a provision on the interruption of the statute of limitations (see Constitutional Court en banc Decision 94Hun-Ma246, Jan. 20, 1995; Constitutional Court en banc Decision 95Hun-Ma100, Jun. 25, 1998).

In this case, the judgment of the court below that the statute of limitations for each of the crimes was suspended on February 25, 2008 when the defendant assumed office as the President, and was resumed from February 24, 2013, which was the date of the defendant's retirement, is justifiable in accordance with the above legal principles. Such judgment of the court below did not err by misapprehending the legal principles on the suspension of the statute of limitations, such as

(g) Publication of the suspected facts;

The lower court, on the grounds indicated in its reasoning, determined that the instant indictment cannot be deemed to have been instituted against the suspected facts subject to the crime of publishing the suspected facts committed by a prosecutor, etc., and that, even if such facts are recognized, the procedure of prosecution does not constitute a case where a violation of the provisions of the Act becomes null and void.

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

2. As to the grounds of appeal on the embezzlement of Nonindicted Company 6

A. The Defendant’s ground of appeal against the actual owner of Nonindicted Company 6

For the reasons indicated in its reasoning, the lower court determined that the Defendant was a de facto owner of Nonindicted Company 6 in light of various circumstances as indicated in its reasoning, including the Defendant actively involved in the process of incorporation of Nonindicted Company 6, the Defendant was also the actual owner of △△dong land, which is the source of capital increase with capital issued by Nonindicted Company 6, and the Defendant and his children exercised major management rights of Nonindicted Company 6 and carried out management succession to Nonindicted Company 7, and other Nonindicted Company 6’s disposal and benefit holders, and the details of use of Nonindicted Company 6’s capital.

Examining the reasoning of the lower judgment in light of the relevant legal doctrine and the evidence duly admitted, the lower court did not err in its judgment by misapprehending the legal doctrine regarding the degree of proof and the credibility of the statement, or by exceeding the bounds of the principle of free evaluation of evidence

B. Embezzlements for raising funds for Nonindicted Company 6

1) Defendant’s ground of appeal

For the reasons indicated in its reasoning, the lower court determined that Nonindicted 8 and Nonindicted 9 embezzled KRW 24,188,926,949 as Nonindicted Company 6’s funds in collusion with Nonindicted 8 and Nonindicted 9, on the ground that the Defendant’s instruction, raising funds for Nonindicted Company 6 with Nonindicted Company 6 and delivered the funds to Nonindicted 10, and the funds transferred as such were used for the Defendant’s sake by laundrying the funds.

Examining the reasoning of the lower judgment in light of the relevant legal principles and evidence duly admitted, the lower court did not err in its judgment by misapprehending the legal doctrine regarding the establishment of accomplices, admissibility and probative value of evidence of statement, and establishment of embezzlement, or by exceeding the bounds of the principle of free evaluation of evidence in violation

2) Prosecutor’s ground of appeal

For the reasons indicated in its holding, the lower court acquitted the Defendant on the part of the facts charged, on the ground that there is insufficient proof of the fact that the evidence submitted by the prosecutor alone was embezzled by creating an additional amount of KRW 9,718,648,938.

Examining the reasoning of the lower judgment in light of the relevant legal principles and records, the lower court did not err in its judgment by misapprehending the legal doctrine regarding the degree of proof, or by exceeding the bounds of free evaluation of evidence.

C. Defendant’s ground of appeal as to embezzlement of payment of false benefits, embezzlement of purchase of automobiles, and embezzlement of use of corporate cards

For the reasons indicated in its reasoning, the lower court determined that the Defendant embezzled Nonindicted Company 6’s funds in collusion with Nonindicted Company 8, etc., on the ground that: (a) paid KRW 434,227,847, a sum of KRW 53,950,00 from Nonindicted Company 6’s funds to seven persons, including Nonindicted Company 11, who worked as the Defendant’s election campaign worker; (b) registered the said car in the name of the Defendant and delivered it to the Defendant; (c) the Defendant delivered the Nonindicted Company 6’s corporate card to Nonindicted Company 6 to the Defendant; and (d) the Defendant used KRW 571,510,60, and paid the said amount to Nonindicted Company 6 in collusion with Nonindicted Company 8, etc.

Examining the reasoning of the lower judgment in light of the relevant legal principles and evidence duly admitted, the lower court did not err in its judgment by misapprehending the legal doctrine regarding the probative value of testimony evidence, establishment of embezzlement, and application of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes, or by exceeding the bounds of

D. Defendant’s ground of appeal as to the number of crimes

For the reasons indicated in its holding, the lower court determined that each of the above embezzlement crimes constitutes a single comprehensive crime, on the grounds that: (a) the victim of the above embezzlement crime is the same as Nonindicted Company 6; (b) the victim’s legal interest is single as the property rights of Nonindicted Company 6; and (c) Nonindicted 8 commits a crime of embezzlement of Nonindicted Company 6 on a specific and individual basis in accordance with the Defendant’s general direction; and (d) each of the embezzlement methods is identical and the identity and continuity of the criminal intent can be recognized.

Examining the reasoning of the lower judgment in light of the relevant legal principles, the lower court did not err in its judgment by misapprehending the legal doctrine on the blanket crime as otherwise in the grounds of appeal

3. As to the grounds of appeal by the prosecutor on Nonindicted Company 6’s evasion of corporate tax

The term "determination of earnings" means that the income subject to taxation is considerably mature (see Supreme Court Decision 2003Du797, May 26, 2005). In determining whether any claim under the Corporate Tax Act is to be included in the gross income, if there is no legal limitation on the exercise of the claim, the right once it becomes final and conclusive and should be included in the gross income for the pertinent business year (see Supreme Court Decision 2004Du3328, May 13, 2005).

For the reasons indicated in its holding, the lower court acquitted Nonindicted Company 6 of this part of the charges on this part, on the ground that, regardless of whether Nonindicted Company 6 was aware of damages and of the perpetrator, as it acquired damage liability for each business year to which Nonindicted Company 6’s embezzlement was committed from 2002 to 2007, each business year to which the crime of embezzlement was committed, the amount equivalent to Nonindicted Company 12’s embezzlement was included in the taxable income of Nonindicted Company 6 each business year, deeming that Nonindicted Company 6 did not include approximately KRW 12 billion collected in 2008 as the taxable income of Nonindicted Company 6 in 208, it did not constitute corporate tax evasion even if it was not included in the gross income for 2008 business year. Furthermore, on this premise, the lower court rejected the prosecution on this premise, on the ground that there was no accusation by the Commissioner of the National Tax Service, etc. as to the facts charged

Examining the reasoning of the lower judgment in light of the aforementioned legal doctrine, the lower court did not err by misapprehending the legal doctrine on the principle of confirmation of rights and obligations under the Corporate Tax Act.

4. As to the grounds of appeal by the prosecutor on abuse of authority

The term “exercise of authority” means the exercise of authority by a public official illegally and unreasonably with respect to matters falling under general official authority and duties, and is distinguishable from tort using status where a public official performs an act that does not fall under the general official authority and duties. In order for a public official to be deemed a matter falling under the general official authority and duties, legal basis related thereto is required. Although no explicit provision is explicitly required, the legal basis is not necessarily required, it is interpreted as falling under the official authority and duties of the relevant public official, and it is interpreted as falling under the comprehensive and practical examination of statutes and systems, and where it is deemed sufficient to cause the other party to perform a non-obligatory act or interfere with rights when it is abused, it is included in the general official authority and duties stated in the crime of abuse of authority (see Supreme Court en banc Decision 2018Do14303, Aug. 29, 2019). Meanwhile, even if a public official allows a working-level person to assist the performance of his duties with respect to matters falling under his authority and duties, such act constitutes one of the standards and procedures for performing duties.

The lower court found the Defendant not guilty of all charges on this part of the facts charged, on the ground that, in light of various circumstances as indicated in its reasoning, such as that the Defendant’s support for Nonindicted Company 6’s lawsuit and Nonindicted Property 10’s order related to inheritance are merely an instruction on private affairs, and that there is no circumstance that the Defendant had exercised general authority and authority over the management of national pending issues, such instruction does not belong to the general authority of the president, and it is difficult to recognize that the Defendant had caused Nonindicted 2

Examining the reasoning of the lower judgment in light of the aforementioned legal doctrine and the record, the lower court did not err in its judgment by misapprehending the legal doctrine regarding the general authority and authority of the crime of abusing authority and obstructing another’s exercise of rights, or by exceeding the bounds of the free evaluation of evidence

5. As to the ground of appeal on the △ Group bribe

A. The prosecutor's ground of appeal on the prior acceptance of bribery

For the reasons indicated in its reasoning, the lower court found the Defendant not guilty of the facts charged around this part and the first preliminary charge on the ground that there is insufficient evidence to prove that the Defendant received a solicitation on October 2007, and that the Defendant did not constitute a prior bribery charge retroactively before the Defendant became a public official after becoming a public official.

Examining the reasoning of the lower judgment in light of the relevant legal principles and records, the lower court did not err in its judgment by misapprehending the legal doctrine regarding the concept of solicitation of prior bribery and the establishment of acceptance of bribe according to the ex post facto recognition and acceptance intent of the recipient, or by exceeding the bounds of the principle of free evaluation

(b) Simple bribery;

1) Defendant’s ground of appeal

A) Part related to the direct remittance of money from Nonindicted Company 13 to the account of Nonindicted Company 14 (hereinafter “first method”).

For the reasons indicated in its holding, the lower court determined that the Defendant received, on the grounds indicated in its reasoning, the pecuniary benefits equivalent to USD 4,250,000 (Korean US$ 5,077,587,500) in total, on the ground that the Defendant received, as a bribe, opportunities and rights to use Nonindicted Company 14’s legal services by the first method, and at the latest around April 2008, the recognition and acceptance of the first method of acceptance of bribe.

Examining the reasoning of the lower judgment in light of the relevant legal principles and evidence duly admitted, the lower court did not err in its judgment by misapprehending the legal doctrine regarding the concurrence of intent, acquisition and intent of bribery, calculation of the amount of bribe, and time of establishment, or by exceeding the bounds of the principle of free evaluation of evidence against logical

B) The part related to the method of paying the amount stated in the invoice sent at the office of Nonindicted Company 14 in which Nonindicted Company 6’s U.S. case was brought to Nonindicted Company 6 in the U.S. Office (hereinafter “second method”) by Nonindicted Company 13

On the grounds indicated in its reasoning, the lower court determined that Nonindicted Co. 6 received money corresponding to the legal service by the second method, and at the latest around October 27, 2009, the Defendant gave and accepted Nonindicted Co. 6’s acceptance of acceptance of bribe, while, on the grounds that there was a common perception or understanding on the content of the performance of duties requested by the Defendant and △ Group and the fact that money and valuables provided to Nonindicted Co. 6 was a quid pro quo for the performance of duties, the lower court had Nonindicted Co. 6, a third party, received money in total 3,314,936.83 U.S. dollars (limited to KRW 3,829,453,343) from a third party upon receiving an illegal solicitation in connection with his duties.

Examining the reasoning of the lower judgment in light of the relevant legal principles and evidence duly admitted, the lower court did not err in its judgment by misapprehending the legal doctrine regarding the concurrence of intent, illegal solicitation, and the statement at home, or by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules.

2) Prosecutor’s ground of appeal

A) The main charge part

The lower court, on the grounds indicated in its reasoning, acquitted the Defendant on this part of the facts charged, on the ground that the Defendant did not directly accept money from the first and second methods.

Examining the reasoning of the lower judgment in light of the relevant legal principles and records, the lower court did not err in its judgment by misapprehending the legal doctrine regarding the acceptance of bribe or by exceeding the bounds of the principle of free evaluation of evidence

B) Part of the first preliminary charge

For the reasons indicated in its reasoning, the lower court found the Defendant not guilty of the portion equivalent to USD 250,00 ($ 232,250,000 in total) under the first method and USD 5,280,594.56 in total under the second method ($ 6,268,969,819 in total) among the facts charged, on the ground that there is insufficient evidence to prove that the Defendant, on February 28, 2008, and March 28, 2008, recognized the acceptance of the bribe provided in the first method or around April 2008.

Examining the reasoning of the lower judgment in light of the relevant legal principles and records, the lower court did not err in its judgment by misapprehending the legal doctrine regarding the establishment of the acceptance of bribe by direct acceptance of bribe and the classification and determination criteria of third party bribery, ex post facto recognition and acceptance intent of the recipient, or by exceeding the bounds of the principle of free evaluation of evidence

C) Part of the 2 preliminary charges

For the reasons indicated in its holding, the lower court acquitted the Defendant of the portion of the charges that amounting to the sum of USD 250,000 ($ 232,250,000 ($ 232,250,000) and USD 1,965,657.73 ($ 2,439,516,475) in total under the second method, on October 27, 2009, on the ground that there is insufficient evidence to prove that Nonindicted Company 6 received money from Nonindicted Company 6 on February 28, 2008 and March 28, 2008, or that the Defendant approved Nonindicted Company 6 to receive a bribe in the first manner from the side of △ Group by not later than April 2008.

Examining the reasoning of the lower judgment in light of the relevant legal principles and records, the lower court did not err in its judgment by misapprehending the legal doctrine regarding the establishment of acceptance of bribe by ex post facto recognition and acceptance intent, or by exceeding the bounds of the principle of free evaluation of evidence in violation

6. As to the grounds of appeal on the loss to the National Treasury and acceptance of bribe due to the receipt of funds from the National Intelligence Service (hereinafter “National Staff”)

A. The grounds of appeal by the prosecutor on the loss of the National Treasury and acceptance of bribe incurred by Nonindicted 15 NIS funds of KRW 200 million by the first hand

For the reasons indicated in its reasoning, the lower court acquitted the Defendant of all charges on this part of the charges on the ground that there is insufficient proof that the Defendant received KRW 200 million from Nonindicted 15 on March 2008 or around May 2008, on the ground that there is insufficient evidence to prove that he received KRW 200 million from

Examining the reasoning of the lower judgment in light of the record, 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.

B. Each national treasury loss incurred by Nonindicted 15 NIS funds of KRW 200 million and Nonindicted 16 NIS funds of KRW 200 million, respectively.

1) Defendant’s ground of appeal

For the reasons indicated in its reasoning, the lower court determined that Nonindicted 15 incurred the total amount of KRW 400 million, in collusion with Nonindicted 15 or Nonindicted 16 in order with Nonindicted 15 or Nonindicted 16, on the ground that: (a) Nonindicted 16 provided KRW 200 million to the president of the NIS at the request of each Defendant on or around April 2008; and (b) Nonindicted 16 recognized the recognition of Nonindicted 16’s loss by the National Treasury; and (c) the Defendant incurred loss of KRW 400 million in total

Examining the reasoning of the lower judgment in light of the relevant legal principles and evidence duly admitted, the lower court did not err in its judgment by misapprehending the legal doctrine on the interpretation of the elements of a crime of violation of the Act on the Aggravated Punishment, etc. of Specific Crimes, or by exceeding the bounds of the principle of free evaluation of evidence in violation

2) Prosecutor’s ground of appeal

For the reasons indicated in its holding, the lower court determined that the crime of violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (Loss on National Treasury, etc.) caused by embezzlement prescribed aggravated punishment for the crime of embezzlement or occupational embezzlement under the Criminal Act depending on the status of accounting personnel, and that the Defendant was punished for the crime of embezzlement under Article 355(1) of the Criminal Act, on the ground that the Defendant did not have the status as a manager of accounting personnel or the special project cost of the NIS.

Examining the reasoning of the lower judgment in light of the relevant legal principles and records, the lower court did not err in its judgment by misapprehending the legal doctrine as to punishment imposed as otherwise in the grounds of

C. The grounds of appeal by the prosecutor on the acceptance of Nonindicted 15 NIS funds of KRW 200 million and the acceptance of bribe by Nonindicted 16 NIS funds of KRW 200 million

If an act of accepting money acquired through a crime of embezzlement is not only an internal distribution of money acquired through a crime between co-principals through a public offering, the crime of bribery is not established separately. Whether the nature of the money received is deemed a bribe or not should be objectively assessed and determined by comprehensively taking into account the intent of the parties to the money given and received, the amount of the money received, the time interval between the crime of embezzlement and the receipt, whether the received money was embezzled, the place and method of receipt, etc. (see Supreme Court Decision 2019Do1766, Nov. 28, 2019, etc.).

For the reasons indicated in its holding, the lower court acquitted the Defendant of all the charges on this part of the facts charged, on the ground that it is difficult to view this part of the State funds received by the Defendant as a bribe, and it is difficult to deem the Defendant as having intention to commit a bribe, on the grounds that it is difficult to deem that there was an intention to commit a bribe.

Examining the reasoning of the lower judgment in light of the aforementioned legal doctrine and the record, the lower court did not err by misapprehending the legal doctrine regarding the establishment of bribery or by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules.

D. The Defendant’s ground of appeal on acceptance of bribe due to the number of USD 100,000 for Nonindicted Party 16 NIS funds

The lower court, on the grounds indicated in its reasoning, determined that the Defendant received USD 100,00 from Nonindicted 16 as a bribe when recognizing the bribe on September 201 through October 201.

Examining the reasoning of the lower judgment in light of the 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.

7. As to the grounds of appeal on Nonindicted 17 Bribery and violation of the Political Funds Act

A. Bribery related to the appointment of the president of Nonindicted Company 18

1) Defendant’s ground of appeal

For the reasons indicated in its holding, the lower court determined that, on January 23, 2008, the Defendant committed an unlawful act after receiving the bribe of KRW 12.3 million from Nonindicted 17 to Nonindicted 20 on the part of his spouse on January 23, 2008, on the ground that he was involved in the appointment of the president of Nonindicted Company 18, who is recognized to have business relationship after the presidential appointment, and was appointed Nonindicted 17 on June 27, 2008 as the president of Nonindicted Company 18, on the ground that the Defendant received the bribe of KRW 12.3 million in response to the solicitation in relation to the duties to be in charge by the Defendant.

Examining the reasoning of the lower judgment in light of the relevant legal principles and evidence duly admitted, the lower court did not err in its judgment by misapprehending the legal doctrine on the relationship to duties, illegal disposal, and probative value of the bribery, or by exceeding the bounds of the principle of free evaluation of evidence against logical

2) Prosecutor’s ground of appeal

A) Attached 3 to 8 of the judgment of the court of first instance (hereinafter “instant list of crimes”) Nos. 1 through 3 of the list of crimes

For the reasons indicated in its holding, the lower court acquitted all of the charges on this part, on the ground that it is insufficient to prove that the Defendant received money from Nonindicted 17 or the Defendant received money in return for solicitation as set forth in No. 5 or No. 8 of the crime list, or had the intention to accept the advance bribery, on the ground that: (a) the Defendant was in the position of a person to be the president for the period from the time he was taken at the presidential candidate at the time of the presidential candidate at the meeting on August 20, 2007 to February 25, 2008; and (b) even if the Defendant received money as set forth in No. 1 or No. 4 of the crime list before that time, the Defendant received money from the president; and (c) there is insufficient proof

Examining the reasoning of the lower judgment in light of the relevant legal principles and records, the lower court did not err in its judgment by misapprehending the legal doctrine regarding the subject of the crime of prior bribery, the existence of solicitation, and the recognition thereof, or by exceeding the bounds of the principle of

B) Serial 10 of the crime sight table of this case

For the reasons indicated in its reasoning, the lower court found the Defendant not guilty of this part of the facts charged on the ground that there is insufficient evidence as to the fact that the Defendant conspired with Nonindicted 19 and received KRW 300 million, or that the Defendant was the subject

Examining the reasoning of the lower judgment in light of the relevant legal principles and records, the lower court did not err in its judgment by misapprehending the legal doctrine regarding the renunciation of conspiracy and conspiracy, or by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules.

B. Prosecutor’s ground of appeal on violation of the Political Funds Act

For the reasons indicated in its holding, the lower court acquitted all of the charges on the ground that: (a) the Defendant did not constitute political funds; and (b) the Defendant conspired with Nonindicted 19 to receive KRW 300 million as indicated in the table of crime Nos. 10; or (c) there was insufficient proof as to the fact that the Defendant received KRW 300,000 as indicated in the table of crime Nos. 10; or (b) the Defendant was the recipient of money and valuables; and (c) on such premise, the lower court acquitted the Defendant of all the charges on the charge of violating the Political Funds Act as stated in the table Nos. 1 through 8 of the crime sight table Nos. 9, on the ground that the statute of limitations

Examining the reasoning of the lower judgment in light of the relevant legal principles and records, the lower court did not err in its judgment by misapprehending the legal doctrine regarding the concept and scope of political funds, and the renunciation of conspiracy and conspiracy, or by exceeding the bounds of free evaluation of evidence against logical and empirical rules.

C. Bribery related to the reappointment of the president of Nonindicted Company 18

1) The Defendant’s ground of appeal on acceptance of bribe Nos. 11 and 13 of the crime list of this case

For the reasons indicated in its reasoning, the lower court determined that the Defendant received total of KRW 200 million from Nonindicted 17 through Nonindicted 20 as a bribe twice, such as the No. 11 and 13 of the crime sight table in this case.

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 misapprehending the legal doctrine regarding probative value, or by exceeding the bounds of the principle of free evaluation of evidence in violation

2) The Prosecutor’s ground of appeal on the acceptance of bribe Nos. 12 in the crime list of this case

For the reasons indicated in its reasoning, the lower court rendered a not guilty verdict on this part of the facts charged on the ground that there is insufficient evidence to prove that the Defendant conspired with Nonindicted 19 and received KRW 100 million from Nonindicted 17, such as the list No. 12 of the instant crime list.

Examining the reasoning of the lower judgment in light of the relevant legal principles and records, the lower court did not err in its judgment by misapprehending the legal doctrine regarding the scope of establishment of a joint principal offender or by exceeding the bounds of the principle of free evaluation of evidence.

8. As to the grounds of appeal on the bribe 21 and the violation of the Political Funds Act

A. The ground of appeal by the prosecutor against the illegal agency after the prior acceptance of the bribe

For the reasons indicated in its reasoning, the lower court rendered a not guilty verdict on this part of the facts charged, on the ground that there is insufficient proof as to the Defendant’s receipt of Nonindicted Party 21’s request for personnel management through Nonindicted Party 22 and Nonindicted Party 2, around B or B in 2007.

Examining the reasoning of the lower judgment in light of the relevant legal principles and records, the lower court did not err in its judgment by misapprehending the legal doctrine regarding implied solicitation of a prior bribery or by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules.

B. The Defendant’s ground of appeal as to the illegal company and violation of the Political Funds Act after simple acceptance of the bribe

원심은 판시와 같은 이유를 들어, 피고인이 공소외 2 등과 공모하여, 2007년 가을 내지 초겨울경 공소외 21로부터 정치자금으로 2억 원을 수수하고, 2008. 3.경부터 4월경까지 공소외 21로부터 합계 2억 원을 추가로 수수한 후 그 대가로 직무관련성이 인정되는 ◇◇◇당 비례대표 국회의원 공천과정에 개입하여 2008. 3. 24. 공소외 21을 ◇◇◇당 비례대표 국회의원 ☆번으로 추천되게 하였다고 보아, 피고인이 2억 원의 뇌물을 수수한 후 부정한 행위를 하고 법에 정하지 않은 방법으로 4억 원의 정치자금을 기부받았다고 판단하였다.

Examining the reasoning of the lower judgment in light of the relevant legal principles and evidence duly admitted, the lower court did not err in its judgment by misapprehending the legal doctrine on the relationship to duties and degree of proof regarding the bribery, or by failing to exhaust all necessary deliberations, or by exceeding the bounds of the principle of free evaluation of evidence in violation

9. As to the grounds of appeal by the prosecutor on each bribe of Nonindicted 23, Nonindicted 24, and Nonindicted 25

For the reasons indicated in its holding, the lower court acquitted Nonindicted 23, Nonindicted 24, and Nonindicted 25 on all the facts charged, on the ground that there is insufficient proof that there was an explicit or implied solicitation against the Defendant at the time of delivering the money to each Nonindicted 2.

Examining the reasoning of the lower judgment in light of the relevant legal principles and records, the lower court did not err in its judgment by misapprehending the legal doctrine regarding implied solicitation or by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules.

10. As to the grounds of appeal by the prosecutor on the violation of the Presidential Records Act

For the reasons indicated in its holding, the court below dismissed this part of the prosecution on the ground that the contents recorded or cited by the prosecutor in the indictment exceed the necessary degree to clarify the specific facts charged and the motive of the defendant's crime, and that the judge may have a judge committed another crime or be involved in such crime, and that the adoption of the evidence may cause the judge to become aware of the contents of the indictment without the procedure for adopting evidence, etc., thereby hindering the judge's understanding of the substance and the exercise of the defendant's right to defense, and that there was a valid objection against the violation of the principle of an indictment only.

Examining the reasoning of the lower judgment in light of the relevant legal principles and records, the lower court did not err in its judgment by misapprehending the legal doctrine regarding the principle of an indictment only or by exceeding the bounds of the principle of free evaluation

11. Conclusion

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

Justices Noh Jeong-hee (Presiding Justice)