Whether a bribe itself can not be confiscated if it has been deposited into a deposit passbook.

Since a bribe itself can not be confiscated because it was deposited by the defendant in his deposit passbook, the amount equivalent to the bribe should be collected additionally.

Article 134 of the Criminal Act

Prosecutor and Defendant

Defendant 1 and one other

Seoul District Court (69Da26722)

Of the judgment of the court below, the part concerning Defendant 2 shall be reversed.

Defendant 2 shall be punished by imprisonment for two years.

The twenty days of detention days prior to the declaration of the original judgment shall be included in the above sentence.

However, the execution of the above punishment shall be suspended for three years from the date of the final decision.

The amount of KRW 3,000,000 shall be additionally collected from Defendant 2.

The prosecutor's appeal against the defendant, such as defendant 1's appeal, is dismissed in entirety.

The summary of the grounds for appeal by Defendant 1 and his defense counsel is as follows: First, while the defendant was in charge of the tax evasion case against the company (title omitted) in charge of Defendant 2's business management, the defendant sought an envelope in the defendant's house and tried to return the envelope to Nonindicted 1, an employee of the next day, on the ground that his whereabouts were unknown and that he did not return it after two weeks thereafter, and the defendant found the Dong and returned it. The defendant did tax investigation in accordance with the provisions of tax law because he did not know how much the whereabouts were contained in the envelope and did not intend to accept money at all from the beginning, and did not have an intention to accept it at all, so the court below found the defendant guilty without reaching this point. The judgment of the court below erred in the misapprehension of facts that could affect the judgment, second, the judgment of the court below against the defendant is unreasonable, and the summary of the prosecutor's appeal against the defendant 1 and 2, and the decision of the court below is too unfair.

Therefore, in light of the records and records, Defendant 1’s assertion of mistake of facts, the first point of which is the grounds for appeal by Defendant 1 and his defense counsel, can be recognized as the fact of the acceptance of the bribe by Defendant 1. Thus, Defendant 1’s grounds for appeal as to mistake of facts cannot be accepted.

Then, we examine the second point of the appeal by Defendant 1 and the prosecutor's decision on the sentence against the same defendant, which is too uneasible, and examine in detail the various circumstances, which are the conditions of the punishment that the court below lawfully investigated, such as the age, environment, criminal records, and circumstances after the crime, the amount of the punishment imposed by the court below against Defendant 1 is appropriate, and the prosecutor's appeal that the decision on the punishment imposed by the court below is too uneasible and unreasonable cannot be accepted.

Therefore, pursuant to Article 364(4) of the Criminal Procedure Act, the prosecutor's appeal against the defendant such as defendant 1's appeal is dismissed in entirety.

Finally, I examine the reasons for appeal that the judgment of the court below against the defendant 2 by the prosecutor is too unhued and unreasonable.

In light of the reasoning of the judgment below, the court below found that the defendant 2 offered a bribe of KRW 3,00,000 (in 9 cashier's checks) to his Dong at the office of the above defendant 1 on March 5, 1969 as well as KRW 21:00,000 on two occasions on March 5, 1969, and around 21:00 on two occasions on the same day, and found that the bribe was given. The above money of KRW 3,00,000 to the non-indicted 2 for the purpose that the non-indicted 3 changed the tax accountant's check on the Busan Do-do hotel to the effect that the non-indicted 2 would make the tax accountant's check on the shipping hotel, and it was clear that the above KRW 1,00,000 was given to the non-indicted 2 and KRW 300,000 on the grounds that the non-indicted 1 was given a bribe of KRW 300,000,00.

However, examining the process of returning the above bribe by Defendant 2’s statement in the court below (96 court records) and Nonindicted 4’s statement in the court below’s decision, Defendant 2 returned the above bribe from Defendant 1 and deposited it in his deposit passbook, and once again, Defendant 2 made three copies of the guarantee check of KRW 1,00,000 and returned it to Nonindicted 2 and Nonindicted 3. Thus, the above bribe itself cannot be confiscated by Defendant 2’s deposit in his deposit passbook. Thus, it should be collected from Defendant 2 as additional collection.

However, the judgment of the court below did not reach this and collected the value of the above bribe from Nonindicted 2 and Nonindicted 3, which affected the conclusion of the judgment by misapprehending the legal principles on the confiscation, and thus, it is difficult to maintain the part concerning Defendant 2 in the judgment of the court below as it is, and thus, it cannot be reversed.

Therefore, since the prosecutor's appeal as to Defendant 2 is well-grounded, pursuant to Article 364(6) of the Criminal Procedure Act, the part concerning Defendant 2 among the judgment below is reversed and the party members are decided again.

Criminal facts and summary of evidence

The criminal facts against Defendant 2 recognized as a party member and the summary of the evidence thereof are as shown in each corresponding case of the judgment below, and they are fully quoted in accordance with Article 369 of the Criminal Procedure Act.

Application of Statutes

The so-called of the offering of a bribe in the judgment by the defendant 2 falls under Article 133 (1) of the Criminal Act, and Article 57 of the same Act provides that the defendant shall be punished by imprisonment with prison labor within the scope of the term of punishment chosen by imprisonment with prison labor, and twenty days of the number of detention prior to the declaration of the judgment of the court below shall be included in the above punishment under Article 57 of the same Act. However, the defendant 2 is the first offender, and the mistake after the crime was committed, and there is a reason to take into account the circumstances. Thus, the execution of the above imprisonment for three years from the date of the final judgment under Article 62 of the same Act shall be suspended, and the above bribe shall not be confiscated after being returned from the defendant 1 and deposited into the defendant's deposit passbook and deposited the above bribe cannot be confiscated under Article 134 of the same Act. Thus, it shall be collected from the defendant 2 under Article 134 of the same Act.

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

Justices Kim Yong-chul (Presiding Justice)