(영문) 서울고등법원 2015.12.24.선고 2015노1799 판결

Defendant shall be punished by imprisonment with prison labor for not less than five years and by a fine not exceeding 150 million won. If the Defendant fails to pay the above fine, the Defendant shall be confined in the workhouse for the period converted into one day.

15 million won shall be additionally collected from the defendant.

The defendant shall be ordered to pay an amount equivalent to the above fine and the additional collection charge.

Reasons

1. Summary of grounds for appeal;

A. Defendant: misunderstanding of facts, misunderstanding of legal principles, and unreasonable sentencing

1) misunderstanding of facts and misapprehension of legal principles

A) As to the receipt portion of a set card, the lower court found the Defendant guilty of this part of the facts charged even though the Defendant thought that the team was given to the team as a whole and did not have any acquisition intent by receiving the set card.

B) As to the portion of KRW 100 million received, 3% interest agreement was reached annually and KRW 100 million was borrowed, even if the Defendant earned a profit equivalent to the financial profit, in calculating the amount of profit, only the remainder of the amount calculated by deducting the total amount of interest calculated by applying the agreed rate of 3% from the total amount of interest calculated by applying the agreed rate of 5% under the Civil Act, but the lower court found the Defendant guilty of this portion of the facts charged in this part.

2) Unreasonable sentencing

The sentence of the lower court (limited to imprisonment for a term of one year and six months, a suspended sentence of three years, a fine of 40 million won, and an additional collection) is too unreasonable.

B. Prosecutor: Error of mistake, misunderstanding of legal principles and unreasonable sentencing

1) misunderstanding of facts and misapprehension of legal principles

Although there is sufficient evidence to regard 100 million won from J as a bribe in light of various circumstances such as the relationship between the defendant and J, the court below erred in the misapprehension of legal principles that the court below acquitted the defendant of this part of the facts charged.

2) Unreasonable sentencing

The sentence of the court below is too uneasible and unfair.

2. Part concerning misconception of facts and misapprehension of legal principles

A. The portion of the receipt of the wire card

1) The lower court determined that there was sufficient evidence to acknowledge the Defendant guilty of this part of the charges, on account of the islands, etc., on which K’s issuance of the weather card from J to the Defendant, which appears to have been used in relation to “the card used in restaurant, etc.”, and that J provided the background that K issued the weather card to the Defendant via K as “the cost of assistance in the increase of the lending limit or the provision of loans to I (hereinafter “I”), and that the Defendant could have sufficiently known the same purport at the time of the receipt of the weather card, and that the Defendant’s use of 10 copies of the weather card received to M who is the superior of the above 10 copies of the weather card, which appears to have been used as a material in accordance with the method of use according to the Defendant’s judgment, such as the Defendant’s acquisition of the weather card.

2) According to the reasoning of the court below acknowledged by the evidence duly adopted and examined by the court below and the court below, it is proper that the court below found the defendant guilty of this part of the facts charged, and there is no error of misunderstanding of legal principles or misunderstanding of facts as alleged by the defendant.

3) Therefore, we cannot accept this part of the Defendant’s appeal.

B. 10 million won received portion

1) On the grounds delineated below, the lower court found the Defendant guilty of the primary charge that the Defendant received a bribe equivalent to KRW 100 million, while on the other hand, convicted the Defendant of the primary charge that he received a bribe equivalent to the financial gains of KRW 100 million.

A) As to the primary facts charged that the amount of KRW 100 million is a bribe, the lower court determined that: (a) the Defendant prepared a loan certificate with K as the other party in the process of receiving KRW 100 million from the J’s account through the K account; (b) the Defendant’s act of using the account remittance method and preparing a loan certificate as a bribe of KRW 100,000,000,000,000, in view of the nature of the bribery that requires confidentiality; and (c) in view of the relationship with K I and the J, it is easy to readily discover the loan transaction with K; and (d) it is difficult to view that the Defendant was an act of hiding the loan certificate or the name of the transaction account with K to cover interest exceeding KRW 400,000 per month; and (e) it seems necessary to borrow money; and (e) it is difficult to deem that the Defendant was aware that the Defendant was a bribe of KRW 100,000,000 by having used the above short-term loan loan loan loan loan loan to be repaid at least 13 billion.

B) As to the conjunctive facts charged that the Defendant obtained 5% annual financial profit of KRW 100 million, the lower court convicted the Defendant on the following grounds: (i) at the time of preparing a loan certificate, the Defendant did not enter interest or the repayment period; (ii) unilaterally deposited money at the rate of KRW 100 million and KRW 3% per annum after the investigation of the instant case begins; (iii) the Defendant was engaged in financial business for at least 20 years; and (iv) there was no money transaction between the Defendant and the J; (iii) it is difficult to deem that the Defendant had an intention to pay interest on KRW 100 million at the time; (iv) the Defendant was in charge of credit business for KRW 100 million as the Export-Import Bank of Korea at the time of the Export-Import Bank of Korea; and there was no personal contact between J and the private sector; and (v) there was no relationship of 100 million with the Defendant to lend her large amount

2) However, we cannot accept the judgment of the court below on this part of the primary facts charged for the following reasons.

A) In a case where a consignee claims that he/she received money from a accepter while receiving money from the accepter, it is not a bribe but a bribe. Whether the accepter actually borrows the money should be determined by taking full account of all the objective circumstances revealed by evidence, such as the motive, reason for delivery, and method of receiving the money from the accepter, the relationship between the accepter and the accepter, the position and occupation of the accepter, the need for borrowing the money, the possibility of borrowing the money from a person other than the accepter, the amount of the borrowed money and the circumstances of the accepter, the economic situation of the accepter, the amount of the borrowed money, the amount of the borrowed money, the payment period, and the interest agreement related to the accepter, the repayment of the principal and interest of the accepter, and the possibility of compulsory execution (see, e.g., Supreme Court Decision 2007Do3943, Sept. 7, 207).

B) The following facts are acknowledged according to the evidence duly adopted and examined by the court below and the court below.

(1) The Defendant joined the Export-Import Bank of Korea in January 2, 2012 and worked as FO from January 2, 2013 to January 1, 2013, and served as G from January 2, 2013 to November 13, 2014. The J acquired and operated the manufacture and sales business of household appliances, such as robot cleaning equipment, around August 2007, and operated it as G from August 2, 2013 to November 13, 2014. The Defendant did not have been convicted of the Defendant’s personal relationship with the first instance court on the ground that there were only three members of the financial institutions, including taking over KRW 239,178,650 and USD 59,698,000,00 from September 24, 2014.

K entered around October 1, 2007 and worked as a financial director from January 20, 201 to take charge of accounting affairs in the management team, and from January 20, 201, the Defendant, who is a person in charge of credit-related affairs, and the Defendant, who is a person in charge of credit-related affairs, are in a position of making a call or holding a meeting, but there is no private-friendly relationship.

(2) During 2012, after undergoing a tax investigation by the Seoul Coast Guard, I was required to pay corporate tax equivalent to approximately 14 billion, while J was required to pay income tax equivalent to about 4.9 billion won. However, around November 2012, the Export-Import Bank of Korea increased the credit limit from KRW 9 billion to KRW 30 billion in financial standing.

On the other hand, in order to determine whether to increase the credit limit, the defendant also attended a meeting of the In-depth Review Committee to present his opinion, and the loan of US$ 17 million to I was implemented on December 4, 2012, and the notice of approval and execution of the loan related to the implementation is a signature that the defendant seems to have obtained approval.

(3) On the other hand, around 2007, the Defendant, upon unreasonable purchase of apartment bonds, became liable for a security loan amounting to KRW 900 million, and bears short-term credit loans to bear the interest. However, the Defendant failed to pay a large amount of debt to compensate for losses caused by a price decline in real estate and was liable for a large amount of debt.

During that period, the Defendant was issued G as of November 14, 2012, and issued a formal order as of January 2, 2013.

(4) While the Defendant was in need of funds for partial repayment to convert a short-term loan into a long-term loan due to the situation at the time of the Defendant’s work in the mother-cream, he was asked to pay back money to J as he is in need of money in order to provide a residence on the mother-cream, and he was asked to pay off money. According to the K’s statement, it was difficult for K to say that he would also borrow money at the end of the Defendant who borrowed money, and the J also appears to be unfair. However, according to the I’s statement, the Defendant played a certain role in the amount of credit card, and even after that, one must pay a continuous credit transaction and credit extension amount with the Export-Import Bank of Korea.

이어서 피고인의 부탁을 거절할 수 없었다'는 것이다. J도 1억 원을 빌려 달라는 피고인의 말을 K을 통해 전해 듣고 '참 재밌는 친구네'라고 생각했다고 진술하였다. 또한 K은 '여산증액과 관련하여 피고인으로부터 도움을 받았다. 에서 승인 받은 300억 원은 기대 이상의 여신금액이었다'고 진술한 바가 있고, J도 '피고인의 도움 없이는 여신한도 증액이 쉽지 않았을 것이다. 피고인이 러시아에서 근무하게 되었다는데 이 러시아에 시장개척을 위해 공을 들이는 중이라는 점도 감안했다'라고 진술한 바가 있다.

(5) The Defendant received the said money from the J account in the way of receiving the money of KRW 100 million from the K account to its own account. During this process, the Defendant also made a loan certificate to K with the direct transfer of KRW 100 million to himself. Although the person who delivered the actual money is J, the process of delivering money to the Defendant through the Defendant’s account and the creditor’s transfer of money was conducted as requested by the Defendant, such as the transfer of money to the Defendant through the Defendant’s account and the settlement of the loan certificate that the creditor recorded at K was made by the Defendant. K was able to reach the attitude of the Defendant who prepared and issued the loan certificate to him as the creditor. Nevertheless, at the beginning of the investigation, the Defendant made a statement to K as if he borrowed money in accordance with the contents of the loan certificate that he prepared and prepared, and made it known to the effect that he did not know that he was “D’s account and delivery of money.” Furthermore, it did not know that it was a part of the Defendant’s account.”

On the other hand, at the trial on the loan certificate, K presented the loan certificate to J, and as there is no interest in the loan certificate, K displayed it in its book book and found it after the investigation of this case was commenced. J stated that "I had known that the loan certificate was in fact," and that "I received a report from KO after the occurrence of the problem." On the other hand, while the defendant argued that I agreed to the interest rate of 3% per annum, it does not state the content of the agreement, such as its assertion.

(6) The Defendant used the K’s credit card payment or the repayment of the loan to a financial institution at KRW 100 million. While the Defendant borrowed KRW 100 million from the J, the Defendant did not offer any security to the Defendant. K or J did not demand any security to the Defendant, and there was no interest in the apartment where the Defendant intended to repay the purchase, and the Defendant did not also provide any information.

Defendant made a statement to the effect that she will pay 100 million won when she her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her with a her her her her her her her her with a her her her her her her.

(7) While the Defendant sought money from JO through K, the other party to his/her duties, but stated in the investigative agency that he/she did not make any effort to lend money through workplace club fees or friendships, etc. on grounds of internal regulations prohibiting monetary transactions between employees.2) The Defendant’s apartment house sold on or around September 2014, but did not pay the money. Upon the commencement of the investigation of the instant case, the Defendant submitted a self-denunciation around November 13, 2014, and deposited KRW 105,761,643, which was the sum of KRW 100,000 per annum and the interest on the claim thereof, as a deposit, around December 1, 2014. After being examined on December 2, 2014, the Defendant was aware of the fact that the money he/she received was the money from J from the beginning).

(8) On the other hand, the Defendant is currently attending an international school in Masksanbaba.

C) If we gather the above facts, we can find out the following circumstances.

① The Defendant, J, and K are only those learned in the course of performing their duties in connection with I’s credit, and there was no relationship of trust as to personal borrowing of money or such relationship.

② At least 20 billion won, the K and its management would have been able to pay national taxes. However, around November 2012, the Korea Export-Import Bank increased the credit limit of KRW 9 billion to KRW 30 billion, which led to the financial situation, and the I evaluated that the credit limit was more likely to have been increased. The Defendant was in charge of the duties to determine the credit limit, who was the party to the duties, and the J was the representative director of the I. The date when the Defendant received KRW 100 million through K was determined on January 2, 2013. Accordingly, the Defendant appears to have failed to refuse the Defendant’s request at the location of the J, and the Defendant appears to have been well aware of such circumstances.

③ Although the Defendant: (a) asked K to repay an apartment house at the disposal of it; (b) however, it appears that the Defendant could have sufficiently known that the apartment house has sold money to K and the remaining money would not be easy to repay due to a large amount of other debts; and (c) there is a strong doubt as to whether the Defendant demanded money with the intent to borrow money by means of a petition. In addition to these circumstances, in light of the fact that the Defendant either informed K or KJ of the fact at the time of the purchase of the apartment house, or paid the obligation to other creditors by the proceeds of the sale without seeking any harm, the Defendant is unable to view it as a normal loan relationship, such as demanding money from J without the intention to repay from the beginning.

④ It is difficult to view that the circumstance of long-term overseas service, like the Defendant’s assertion, ought to have been converted to a long-term loan. Even so, even if so, considering the Defendant’s occupation as an employee of a financial institution, it is not impossible to prepare for it, given that the Defendant’s overseas service was planned in advance. However, it does not appear that the Defendant made efforts to lend money to others than J, and the Defendant was also recognized by the investigative agency as having not made such efforts.

⑤ While the Defendant did not make any effort to obtain money in and around the actual region when the investigation of the instant case begins, the Defendant’s assertion that there was no way to obtain money by 100 million won upon the commencement of the investigation. Considering the Defendant’s occupation and position as an employee of the financial institution, it is difficult to accept the Defendant’s assertion that there was no way to obtain money by J, and rather, it appears that the Defendant’s demand for money through K is difficult to accept. (6) Although there is a high possibility that the bribe would be received closely as pointed out by the lower court, it is possible for the Defendant to receive money through the account in order to pretend the receipt of money as a loan relationship, and to draw up a certificate of loan by making the Defendant obtain money from J as a creditor while preparing the certificate of loan with 3% interest agreement at the time of the receipt of the loan agreement.

Furthermore, even though the Defendant is the actual creditor, and K is merely a scarcity, at the initial stage of the investigation process, it was difficult to keep K as the creditor, and the principal and interest calculated under the name of K as the depositee, and deposited the principal and interest calculated under the name of J as the principal and interest of the investigation agency, and the Defendant was aware that he was the money of J from the beginning only when the investigation agency continued to hold the investigation agency. Accordingly, even if the Defendant, even if he received and borrowed money through the account, it was extremely high that there was a means to avoid the loan relationship in preparation for the internal audit or investigation in the future, and actually pretended such a speech and behavior.

In addition, the circumstance that K or K did not notify all of the fact of apartment domains to K or K, and the situation that K visited the above KRW 100 million that the defendant did not mention at all the defendant or K with respect to the above KRW 100 million, the defendant would have to pay off the debt by phoneing from Mascki to K. The fact that it is true that the defendant would actually have to pay off the debt. In addition, there is a high possibility that there was another room to conceal the bribe in case of the fact that it is in mind of the repayment of the loan, and that there was a possibility that there was another way to disguise the loan relationship

7) In addition to the circumstance in which the Defendant assumed a large amount of obligation, it is clear that the Defendant did not have been able to fully repay even if the Defendant borrowed money. It is also true that the Defendant had not been able to fully repay the money. Although the Defendant was able to repay the money at the disposal of the apartment, the apartment was in a difficult situation at any time, and the apartment was set up, and there was a large amount of other obligations. In fact, even though the Defendant sold an apartment bond, the principal was dead and the interest he claimed was not repaid from the proceeds of the sale. In other words, in light of the circumstances at the time when the Defendant asserted that the Defendant borrowed KRW 100 million received, it was almost impossible for the Defendant to repay the money at the time of the Defendant’s promise. In addition, as the Defendant was to receive necessary expenses for staying in a foreign country from the Export-Import Bank of Korea, the Defendant did not need money to establish a house to reside, and the Defendant did not actually use the money received through K in the payment of credit card or loan in a financial institution, and did not actually use in residence.

The above circumstances violate the Defendant’s assertion that the Defendant demanded money on the ground that he/she would have borrowed his/her idea or borrowed money in return.

③ In addition, both J or C, who is the delivery provider, considered the Defendant’s conduct of lending money, and there was no intent to receive payment from the Defendant, and J provided money to the Defendant for a long time. If the Defendant was in the position of carrying out financial business for a long time, there is a high possibility that J or K would have sufficiently read the above thoughts and demanded money to him.

9. The defendant's assertion also cannot be accepted or rather the defendant's 100 million won added to the circumstance that the defendant's claim is a bribe rather than a loan.

(2) The defendant asserts that he/she would be able to pay the duty allowance after gathering the duty allowance in overseas service.

However, as seen earlier, the Defendant did not have been able to fully repay the repayment plan, and there was no way to express the repayment plan to K or J, while the apartment is repaid at the disposal of the apartment, the apartment is repaid at the disposal of the apartment, and the K or J did not know the fact that the apartment was sold. Furthermore, it is difficult to deem that the Defendant had the intention to repay, and it is difficult to regard the money received by the Defendant as the borrowed money because it is difficult to find out the fact that the Defendant could not know the failure of stock investment, and thus, the Defendant could not first fail to repay the debt to the head of the apartment purchase price. However, such circumstance appears to have been proven that the apartment was already sold at the time of selling the apartment at the time of receiving KRW 100 million from J, and thus, the Defendant would not have been aware of the fact that even if the apartment was sold at the time of the sale of the apartment, it would not have been sufficiently known from the beginning.

The Defendant, who had been engaged in the operation, does not necessarily intend to pay the purchase price with the apartment, and the Defendant asserts that he would pay the loan at the time of the sale, such as the repayment of credit loans, if the credit rating is high, with the purchase price. However, this is not only different from the content of the Defendant, but also if the Defendant’s mind is genuine, he did not notify the Defendant of the fact that he purchased and sold the apartment and did not pay any part of the apartment at that time, or the interest he asserts, and did not fully explain the act of depositing the principal and interest only when the investigation of the instant case started, and thus, it is difficult to accept the Defendant’

3) Therefore, in light of the above facts and circumstances in light of the legal principles as seen earlier, it is reasonable to deem that KRW 100 million received by the defendant as a bribe related to duties, not a loan, is reasonable. Accordingly, the prosecutor’s assertion in

3. Conclusion

Therefore, the prosecutor's appeal has merit, and accordingly, the part which the court below found the defendant guilty (the primary charge against acceptance of KRW 100 million) and the part which the court below found the defendant guilty (the part on receipt of a set card of KRW 5 million) should be decided again in relation to a single comprehensive crime. As such, in a case where the court below found the defendant guilty of the primary charge as above, the court below's judgment omitted the defendant's assertion on unfair sentencing between the defendant's assertion of the primary charge and the parties' assertion on unfair sentencing should be reversed, and it is again decided again through a pleading as follows.

Criminal facts

The Defendant served as F in the Export-Import Bank of Korea from January 2, 2012 to January 1, 2013, and is serving as G from January 2, 2013 to November 13, 2014, and is serving as H from November 14, 2014.

The Defendant, from November 201 to December 2012, 2012, from the Export-Import Bank of Korea to the Export-Import Bank of Korea, increased the credit limit of the Export-Import Bank of Korea from KRW 9 billion to KRW 30 billion, and accordingly, provided credit to I, and took charge of duties related to the credit limit of the Korea Export-Import Bank of Korea to KRW 1.

Since then, around December 28, 2012, the Defendant received 10,000 won card 50,000 won from the J of the International Financial Director K at the coffee shop located in Yeongdeungpo-gu Seoul Metropolitan Government, and around January 2, 2013, the Defendant was transferred KRW 100,000 from J to the national bank account in the name of the Defendant via K at the location of the additional river of the Bank located in Geumcheon-gu Seoul, Geumcheon-gu, Seoul. Accordingly, the Defendant received a bribe of KRW 15,500,000 in total in relation to its duties as an employee of the Export-Import Bank of Korea, who is deemed a public official pursuant to the Act on the Aggravated Punishment, etc. of Specific Crimes (hereinafter referred to as the "Specific Crimes Aggravated Punishment Act").

Summary of Evidence

1. Partial statement of the defendant;

1. The witness J, K's original judgment and each legal statement of the party branch;

1. Lritten statements;

1. Protocol of seizure (Evidence Nos. 38);

1. Application of the Acts and subordinate statutes to the investigation report, investigation report (in relation to receipt of KRW 100,00,00), investigation report, investigation report (Attachment of A's personnel record card), investigation report (Attachment of three cases of loan approval granted in charge of A), investigation report (Attachment of three cases of loan approval granted in charge of A), submission of reference materials by a defense counsel, investigation report (Attachment of statement of account transaction of a suspect), investigation report (Attachment of statement, statement of statement, statement of statement, statement of statement, statement of statement, use of card of card, etc.), and each braille document (Evidence Nos. 9 through 13, 18, 19, 21 through 29, 32, 342, 48 through 51 of the evidence list);

1. Article relevant to the facts constituting an offense and the selection of punishment;

Articles 2(1)1 and 4(1)2 of the Specific Crimes Aggravated Punishment Act, Article 2 subparag. 5 and Article 3 subparag. 1 of the Enforcement Decree of the Specific Crimes Aggravated Punishment Act, and Article 129(1) of the Criminal Act (generally, the choice of imprisonment for a limited term and the imposition of fines pursuant to Article 2(2) of the Specific Crimes Aggravated Punishment Act)

1. Discretionary mitigation;

Articles 53 and 55(1)3 and 6 of the Criminal Act (see, e.g., Supreme Court Decision 201Da1541, Apr. 2, 201)

Articles 70(1) and (2) and 69(2) of the Criminal Act

1. Additional collection:

Article 134 of the Criminal Act

1. Order of provisional payment;

1. Reasons for sentencing of Article 334(1) of the Criminal Procedure Act: Imprisonment with prison labor for 5 years from 15 years to 15 years, and fine for 15 million to 260 million won from 200 million to 2. The scope of recommending punishment based on sentencing guidelines: 7 years to 10 years;

[Determination of Punishment] Type 5 (not less than KRW 100,00 but less than KRW 500,00) of receiving and receiving female species

[Special Sentencing] Aggravation and Mitigation Elements: None

[Recommendation Area and Punishment] Imprisonment with prison labor for not less than seven years but not more than ten years (Basic Area)

3. Determination of sentence: Imprisonment with prison labor for a period of five years and a distance of 150 million won;

The Defendant, as the Export-Import Bank of Korea F in charge of the loan business of small and medium enterprises, was in the position requiring official and integrity to conduct a loan business. Nevertheless, the Defendant received a large amount of bribe of KRW 5 million from the related company in charge of the loan business, which is KRW 100 million. Furthermore, as the Defendant borrowed from a third party, the Defendant pretended to the transaction account or loan certificate and failed to reveal the outside of the transaction. The Defendant borrowed money from KO until the time when objective evidence is revealed. Furthermore, when the Defendant was liable for large amount of debt due to real estate investment and stock investment failure, etc., the Defendant directly demanded money from the other party as a loan borrowed, and the Defendant was unable to refuse the Defendant’s demand due to lack of relationship with the exception of business, and the Defendant was merely a loan relationship, even though several evidence were proved to have received a bribe that is not the number of borrowed money, and the Defendant was merely a defense counsel to whom the Defendant submitted the written statement to the investigative agency, and thus, the Defendant cannot be held guilty in light of the motive and motive for the crime in this case.

However, in determining the term of punishment, the defendant is not an actual public official, but an employee of the Export-Import Bank of Korea who is deemed to be a public official only in the application of bribery, there is no criminal record, the defendant was employed in good faith in the Export-Import Bank of Korea for 27 years after entering 1987, and the money received late after deposit and deferred payment in this case shall be considered as favorable circumstances, and the punishment shall be determined as ordered by taking into account all the sentencing conditions specified in the argument of this case.