(영문) 서울고등법원 2013.1.4.선고 2012노2639 판결

The part of the judgment of the court below regarding Defendant B shall be reversed. Defendant B shall be punished by imprisonment with prison labor for five years. The penalty of KRW 195,256,349 shall be additionally collected from Defendant B. Of the facts charged against Defendant B, the illegality of the bribery after accepting the bribery shall be acquitted. Defendant A’s appeal shall be dismissed

Reasons

1. Summary of grounds for appeal;

1. Defendant B

A. Error of mistake

The defendant B asserts that the guilty part of the judgment of the court below is erroneous, and the following part of the judgment is examined.

B. misunderstanding of facts and misunderstanding of legal principles as to additional collection are not exempted from the obligation to pay the service and the price of goods purchased by Defendant B on behalf of L, but also provided the interior, furniture, and household appliances itself provided by L. Also, confiscation is not always possible only for the goods seized, and even if it is impossible to confiscate the goods not seized by domestic affairs, if it becomes impossible to confiscate the goods because the investigation agency failed to seize them intentionally or by negligence, it shall not be subject to additional collection. The lower court erred by misapprehending the legal principles as to additional collection and ordering additional collection in a lump sum for the parts of the construction and the household products.

The sentence of the court below is too heavy (two years of imprisonment, additional collection 215,256,349).

2. Defendant A

(a) Absence of business relationship;

(1) Under this part of the facts charged, Defendant A had been working for the 2nd team of the Non-Bank of Korea Non-Bank of the Financial Supervisory Service, which was entirely irrelevant to the inspection, supervision, etc. of savings banks around November 2005, in light of the convenience in the inspection, supervision, etc. of the H Savings Bank from T, etc. as well as the convenience in the inspection, supervision, etc. of the H Savings Bank from T, etc.

(2) In a case where the duty relationship is recognized with respect to the previous duties, there is a specific relationship between the specific duties performed by the pertinent public official and the time and content of receiving money and valuables, and there is a considerable and specific relationship between the time and content as well as the time and content as the duty relationship is recognized in the near future, even in a case where the duty relationship is recognized with respect to the duties to be performed in the future. However, in the case of Defendant A, there is no relation with the provision of ex post or ex post convenience, such as at intervals of 3-4 years based on the time of debt exemption in this case.

(3) Defendant A was out of the business affairs related to the savings bank of the Financial Supervisory Service and 4 years have already elapsed, and Defendant B, etc. was in charge of the inspection and supervision of the savings bank, etc., only participated in the purchase, etc. of the instant land (the Gyeonggi-gun U.S. 15 parcels) led by Defendant B, etc. in a private-friendly relationship with B, etc., and it is only a mere fact that he had been in charge of the inspection and supervision of the savings bank at the time when 3 years have passed thereafter, and it is not recognized that there was a business relationship. The lower court erred by misapprehending the legal principles regarding

B. The facts charged as to the non-performance of the effect of debt exemption are that Defendant A received a bribe equivalent to the amount of the debt corresponding to the H Savings Bank’s loan, which was used as the purchase fund of the land of this case, by taking over the ownership of part of the land of this case. The above loan debt is converted into the name of AJ around November 2006 after the mortgage and superficies on the land of H Savings Bank’s H Savings Bank were cancelled on January 10, 2006, and it was converted into the unsecured debt under the name of AJ around July 2006, and was disposed of again in the name of BF around July 2008, and it was not finally extinguished (the loan credit held by H Savings Bank, which is a corporation, cannot be extinguished due to the declaration of intention of debt exemption by T individual). As such, since the Defendant’s debt was not actually exempted, it cannot be deemed that the Defendant received a bribe equivalent to the amount of the debt.

(1) Defendant A was unaware of the fact that the purchase price of the instant land was KRW 80 million at the time of the instant case, and the purchase price of KRW 800,000,000,00,000,000,000,000 was determined more than the actual amount between the seller and the seller for the purpose of raising funds, etc. As such, the said KRW 80,00

(2) Since the land portion among the instant land distributed to the Defendant is considerably low in real value compared to other parts, the profit acquired by the Defendant should not be simply determined in an amount equivalent to the ratio of the area of the land acquired by him/her among the above 800 million won.

II. Determination on the grounds for appeal by Defendant B

1. Violation of the Act on the Aggravated Punishment, etc. of Specific Crimes: 65260,000 won or less;

(a) The place of appeal

(1) Defendant B claimed that the expenses are included in the collection value, on the recommendation of J, decided to purchase BG building 301 (hereinafter “BG of this case”). However, as the lien holder has complicated legal relationship, the relationship of rights was complicated, the location condition was lower than that of other goods, and the J, which is the former manager of the IG bank, should sell BG on a good condition, there was a need to make an indoor test about 301 as a means of solicitation for purchase.

On the other hand, as Defendant B, J and long-standing relatives, Defendant B knew that he would move into the instant BG and live there at that time. At that time, Defendant B had been living in the vicinity of BG and there was only one time before the public test of his house. Accordingly, the construction was conducted by requesting L to this person who had been in charge of the construction work before having requested interior interior test. As such, the artificial test work was conducted by the J, and the artificial test cost was included in the collection value. Accordingly, Defendant B cannot be said to have received a bribe equivalent to KRW 45 million of the construction cost due to artificial test.

(2) The assertion that the total amount of 45 million won is not a man-made cost.

L L is about June 23, 2005 when the contract price was paid to L is about June 23, 2005. However, the instant BG Corporation was made around September 2005, and around six (6) days after L was suspected that L was used for L’s own house. There was doubt that a significant portion of 45 million won was not used for L’s own house. The lower court recognized that the total amount of 45 million won was used for the instant interior work by misunderstanding the facts.

(3) Defendant B and L alleged that furniture and household appliances were received as a friendly relationship had a friendly relationship, such as holding a meeting at the end of the year-end relationship, and giving and receiving gifts at the time of life-saving. The instant Category A and household, etc. are merely a gift made by LA-gu to friendly relationship, and their value includes 0-5 million won and 00-5 million won as stated in the facts charged, it is difficult to readily conclude that 202.66 million won, such as as indicated in the facts charged.

B. Determination

Considering the following circumstances, i.e., L’s N acceptance and test request process, Defendant B’s status in the Financial Supervisory Service at the time of Defendant B’s request, and its business relations with the I Savings Bank, L at the time offered a bribe equivalent to 6,5260,000 won for the instant BG purchased by Defendant B with a clear interest related to Defendant B’s duties, and Defendant B received the said money as a bribe in relation to his duties, and there is reasonable ground to view that Defendant B received the said money as a bribe. In so doing, the lower court did not err by misapprehending the legal doctrine as alleged by Defendant B, etc.

(1) L received the introduction of Defendant B through B, an office member of the I Savings Bank, around the end of 2002, and then received the proposal from Defendant B, etc. to take over the N business from Defendant B, etc. around December 2004 and confirmed the overall progress and problems of the business.

(2) L received a pledge from J and Defendant B to complete the N business after completion, that BH, a holder of the I Savings Bank, will continue to raise the funds in the form of loan, and received N business around May 2005.2)

(3) Meanwhile, around April 2005, L came to know of the fact that Defendant B intended to purchase the instant BG at the drinking site J and Defendant B, and 3) in the process of requesting J or Defendant B, etc. to perform the overall human test of the instant BG, and around that time, visiting the said BG, such as AF, a subordinate staff member, and requested LF to conduct the test of the instant BG, and then requested L, who is located in the BI apartment shop, to conduct the test of the instant BG (L refers to the family problem in the prosecution, and specifically stated L in relation to the process of human test supply) (L refers to the family problem in the prosecution, and the Defendant B also expressed that L was well aware that the test has been conducted after the completion of human test work, and it also indicated that the test has been conducted).5)

(4) As to the motive in which L paid expenses for interior works, etc. on behalf of L, the purport of L is that Defendant B is in the Financial Supervisory Service, and that L’s L’s L’s L’s L’s business related to the N’s business is not a problem (Evidence record 674 pages 6).

(5) From January 1, 199 to August 24, 2006, Defendant B served in a non-bank inspection station responsible for the inspection, supervision, etc. of savings banks. From October 25, 2004 to November 3, 2004, Defendant B participated in the field inspection of a mutual savings bank as GO during the course of a field inspection; from August 2, 2005 to September 30, 2005, Defendant B performed the duties of the Governor of the Financial Supervisory Service for I Savings Bank; from December 5, 2005 to December 16, 2005, Defendant B was aware of the overall problems with respect to I Savings Bank, such as the classification of I Savings Bank's asset soundness down to its asset soundness and the excess of the limit of LK for the same person.

(6) ○○○ made a concrete statement on the following facts: (a) BG account in Korea for which he deals with BG 2 times; (b) the time of Indian construction (the time of interior works: around May 2005; (c) the time of installation of household products; (d) the construction cost (45 million won: 2060,000 won: 20,000 won) at the time of request of BG 20,000 won; and (c) the time of request of BG 20,000 won for repair and construction work; and (d) the time of request of BG 20,000 won for construction work; (e) the time of request of BG 50,000 won for construction work; (e) the time of request of BG 20,000 won for construction work; and (e) the time of request of BG 3G 50,000 won for construction work; and (e) the time of request of BG 3G 50,00,00, more new construction work cost.

(7) Furthermore, in light of the fact that L and Defendant B basically have a pro rata relationship formed by the need for business at the time, and it is a question as to whether the house had a pro rata relationship equivalent to KRW 50 million, and L had a clear interest in Defendant B, who had a right to inspect and supervise the IMO Bank that borrowed a large amount of money to its N business, and in such a situation, Defendant B, a public official of the Financial Supervisory Service (quasi-public official) received the above purchase amount and thereby is doubtful of fairness in the execution of duties from the general public in society, it is reasonable to view that the amount equivalent to the household product of the household that L paid by the large amount, is not merely an ordinary case, but also constitutes a bribe related to his duties.

2. The point of illegal action after the acceptance of the bribe; and

A. Facts charged

피고인은 '2005. 7.경’ 서울 강남구 역삼동에 있는 음식점에서, L로부터 향후 금융감독원의 I저축은행에 대한 검사 및 감독시 K에 대한 불법대출 사실을 묵인해 달라는 취지의 청탁을 받고, 그 사례 명목으로 시가 2,000만 원 상당의 스위스 롤렉스사 제작'데이토나' 손목시계 1개를 교부받았다.

Since August 2, 2005 to September 30, 2005, while performing the supervisory authority of the Financial Supervisory Service with respect to the I Savings Bank, the Defendant correctly grasped the fact that the total size of K-related loans exceeds 6.9 billion won and reaches an amount equivalent to 4.4 billion won with respect to the same person of the I Savings Bank. In addition, from December 5, 2005 to December 16, 2005, the Defendant carried out inspections on the I Savings Bank as G in charge of the I Savings Bank's comprehensive inspection "credit" inspection of the Financial Supervisory Service from December 5, 2005, although the Defendant knew that the size of K-related loans increased to 6.4.46 billion won and 1.499 million won, he did not point out such fact and did not deal with the duties of supervision.

Accordingly, the Defendant received a bribe in relation to his duties as a member of the Non-bank Inspection Bureau of the Financial Supervisory Service, which is deemed a public official, and committed an unlawful act in return.

(b) The place of appeal;

(1) The fact of acceptance of bribery

Defendant B is limited to the knife of the instant visibility (the knifeto and knife in the production of Switzerland) in the form of hand with L in the drinking place around 2003, and the knife of the instant visibility (the knife and knife) is exceeded, and the knife around 2003 does not have business relationship as before the I Savings Bank extended its loan to K.

(2) Illegal disposals

Defendant B was difficult to accurately state the size of the loan on the part of J, AE, and IB bank that the size of the loan on the part of L (K) is thoroughly hidden. As such, it was difficult for Defendant B to accurately state the total size of the loan related to K and the fact that the loan exceeds the limit on the same person. Therefore, Defendant B was aware of the failure to conduct a proper investigation on K and the fact that it was not intentionally omitted the report. Although there was only a statement to the effect that Defendant B made a confession of the illegal wife at the time of interrogation of the fourth and fifth suspect interrogations, there was a lack of credibility, since Defendant B’s health status was not good, and Defendant B made a statement differently from the fact by the prosecutor’s hearing promising to take a minor line.

(1) Although Defendant B initially delivered one of the instant visual images from the time when the prosecutor’s statement was made to the trial of the case, the time is asserting that he is memory in around 2003. In particular, while recognizing other criminal facts in the five-time interrogations of the prosecution, Defendant B stated to the effect that the time when visibility was received from L is 7-8 around 2003.

(2) Prosecution 1 prosecutor’s office provides B with Switzerland with the test and sales of Switzerland production and sales test or visibility. B had only one string of the subsequent several years thereafter, and one string of AF. The time when the wring of the wring of the wring of the wring of the wring of the wring of the wring of the wring of the wring of the wring of the wring of the wring of the wring of the wring of the 2006. The wring of the wring of the wring of the wring of the wring of the wring of the wring of the wring of the 206.

○ 2 times prosecutions: B retires from the gold-free sources and memory with the diameter immediately before the H Savings Bank’s audit. The visibility was a high-class trial with the market price exceeding 20 million won, and when B retires from the public office, it did not know such high-level trial.

○○ Prosecution 4 times: A long time of purchase is not memory, but it is memory that direct purchase was made by visiting BN stores. It is suitable for B to unresh with the fact that B is bad in the course of drinking, smoking, tobacco smoking, and talking at a restaurant near BO hotel in 7-8. This is the same as (after purchase) a few months of call at around July 8, 2005.

○○’s statement in the trial: The time when the visibility was unsatisfyed is well memory. The time when the visibility was unsatisfyed is unsatisfyed. The same is not to be purchased from the department store of BP, and it is to be received from the gift when he went to Japan. The same is to be applied to the AF in Japan. There is no time to bring the AF to Japan. On the other hand, I want to purchase the AF from the department store.

D. Determination

The recognition of facts constituting a crime in a criminal trial ought to be based on strict evidence with probative value, which leads to a judge to have the degree of having no reasonable doubt. Thus, in a case where the prosecutor’s proof does not sufficiently reach the extent of causing such conviction, the interests of the defendant should be determined even if there are suspicions of guilt, such as the defendant’s assertion or defense contradictory or uncomfortable dismissal. In addition, the above strict proof includes all specific facts constituting a crime as stated in the indictment by the prosecutor. In particular, the date and time of the crime specified in the facts charged is the main object of exercising the defendant’s right to defense, and it should be recognized through strict proof, and it should not be recognized that there is proof of facts constituting a crime on the ground that there is a probability that the defendant committed a crime in another time even though such proof is insufficient (see Supreme Court Decision 2010Do1487, Apr. 28, 201).

However, L's statements that the visibility of this case had taken place are dependent on incomplete memory about the time of purchase and delivery (whether it was around 2005 or around 2006, whether Defendant B purchased from the department store in Japan, whether it was purchased from the department store in Japan, whether it was delivered for her own time or for her own time) and the place of delivery, and are not consistent from the time of the first prosecutor's statement to the trial. In light of this, the evidence submitted by the prosecutor, such as part of AF's prosecutor's statement, etc., is difficult to readily conclude that Defendant B had sufficient proof to the extent that there is no reasonable doubt about the fact of receiving the visibility of this case on July 2005, and without examining the remaining points, it is reasonable to discuss this part of the appeal by Defendant B without examining the remaining points.

3. Violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes;

(a) The place of appeal;

(1) Whether the purchase was made

The articles No. 1 and No. 8 in the table of crime Nos. 1 and 8 in the annexed table of the court below did not have been purchased by Defendant B, and the articles No. 9 are settled and purchased by Defendant B. On the other hand, the Rotterdam product specifications appear to have been prepared by the staff of the BP department at L’s request. The employees actually prepared stated that each payer of the particulars of the Rotterdam products purchased by Defendant B cannot be identified.

(2) Intermediate L is a gift to Defendant B, who retired from the Financial Supervisory Service, for the purpose of maintaining dignity that is compatible with the audit site of the H Savings Bank. The gold transmission No. 2 No. 1000 g of the annexed crime list, upon L’s request, is not received as a good consideration as to whether the degree of gold transmission 100gs in the ground of the Defendant.

B. Determination

(1) Relevant legal principles

"Good offices" under Article 7 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes refer to "an act of arranging or promoting convenience between a certain person and the other party in certain matters." Thus, not only a case where a certain person transfers the purpose of solicitation to the other party as it is, but also an act of making solicitation on behalf of the other party, which constitutes a case where the act of arranging is subject to past or legitimate duties, and if the act of arranging is conducted as it is subject to the act of arranging, the above crime is established regardless of which act of arranging is actually conducted (see, e.g., Supreme Court Decision 2007Do8117, Jan. 31, 2008). In this case, the agreement between the client and the broker on the specific pending issue that is the object of the request or arranging is not necessarily required to be made explicitly, and it is possible by an implied method.

On the other hand, whether there is a quid pro quo relationship between a broker and a beneficiary of a financial institution’s duties shall be determined by comprehensively taking into account all the circumstances, such as the contents of the relevant arrangement, the relationship between the broker and a beneficiary, the degree of profit, the details and timing of receipt of profit, etc., and where there is a comprehensive and comprehensive quid pro quo relationship between the intermediary and the beneficiary’s money and the money and valuables received by the broker, and where the nature of the consideration for the intermediary and other acts are indivisiblely combined with the money and valuables received by the broker, it is reasonable to deem that the entire quid pro quo has the nature of consideration for an indivisible arrangement (see, e.g., Supreme Court Decision 2006Do70

(2) Determination

In light of the following circumstances acknowledged based on the records, i.e., the process of arranging the details of the purchase of clothes by Defendant B, the credibility of the statement, the motive of the request for mediation, and L's large payment, etc., it is reasonable to view that Defendant B received money and valuables equivalent to KRW 50,334,00 with respect to the mediation of matters belonging to the duties of an executive officer or employee of the Financial Supervisory Service, a financial institution, from Defendant B, implicitly or indirectly, from Defendant B. The judgment below is justifiable, and there is no error of law such as misconception of facts that affected the judgment,

(A) L is the same as the settlement amount is increased on May 3, 2008, and L requests the head of P Yang Branch to adjust the number of clothes to a certain degree. Accordingly, Defendant B purchased and separately arranged the purchase details of clothing, etc. between them, and submitted relevant materials to the prosecution. The above materials indicate that Defendant B purchased clothes, etc. amounting to 30,334,000 won from May 5, 2008 to April 11, 201 (Evidence record: 520 pages; however, according to the above materials, 22,30,000 won and 930,000 won were additionally stated, but the above part was not prosecuted) and Q Q, which was an employee of the sales center at the time, was almost possible to settle the small amount of the above sales amount, but most of the above materials stated to the effect that Defendant B purchased.

(나) 피고인 B 주장에 따른 친분관계에 의하더라도, 금송 1,000 그루를 피고인 B이 구입하여 피고인 B의 땅에 심어서 대신 길러주고, 10) L가 필요에 따라 언제든지 가져가기로 하였다는 취지의 주장 자체가 선뜻 납득하기 어려운 측면이 있고, 반면, L는 아래와 같이 전체적으로 뇌물공여 동기에 관한 진술을 하면서 피고인 B이 자신이 보유하고 있는 유명산 기슭의 집에 소나무를 키우고 싶다고 해서 그루당 2만원짜리 작은 금송 1,000그루를 구입하는 비용으로 B에게 2,000만원을 송금해 주었다고 하여 진술한 바 있다(증거기록 737면).11)다 L는 검찰에서 알선의뢰 동기에 관한 구체적으로 진술하였다. 즉, 피고인 B은 금감원에서 근무할 때는 물론이고 금감원을 그만 두고 H저축은행 감사로 간 이후에도 금감원의 I저축은행에 대한 검사가 있을 때는 여러모로 신경을 써 주었다. 금감원에 남아 있는 이전 동료 직원들에게 전화를 해 주는 식으로 계속 I저축은행에 대한 금감원 검사에 힘을 써 준 것이다. 12) ...피고인 B이 L에게 계속적으로 대출해주고 있는 I저 축은행에 대해 퇴직 이후에도 계속 신경을 써주고 검사시에는 영향력을 행사해주고 하였으니까 B 퇴직 이후에도 계속하여 B으로 하여금 진술인 결제하에 아르마니 양복을 구입할 수 있도록 배려해 준 것이다. 단순히 친구라는 이유만으로 퇴직후 까지 계속 B에게 백만원이 훌쩍 넘는 고급양복을 B 마음대로 구입하게 해줄 수는 없다고 진술하였다 (증거기록 735-736면).리 한편, L는 당심에서 피고인 B이 금융감독원 퇴직 후에 피고인 B에게 금융감독원 직원들이 I저축은행의 각종 문제점을 적발하지 않도록 청탁한 사실이 없고, 피고인B이 해마다 김장김치를 담아다 주는 등 사적인 친분관계에 기하여 피고인 B이 H저축 은행 감사가 되었으니 체면에 맞게 옷을 입고 다니라고 하면서, 아르마니 양복 등을 사준 것이라는 취지로 검찰에서의 진술을 번복하였다.

However, according to L's statement (Evidence No. 669, 670 pages 13) at the prosecutor's office, Defendant B appears to have purchased uniforms in the way of settling L on behalf of L from the end of 2005 to the beginning of 2006, prior to his retirement from the Financial Supervisory Service on August 2006, and it seems that he paid the clothes equivalent to 2-3 years only on the basis of friendly relationship, and it is inevitable to say that Defendant B paid a large amount of money to the 10 million won over 2-3 years only. L who received a large amount of loans from the IB bank is expected to be given convenience in relation to the inspection, supervision, etc. of the IB bank through the dynamic staff working in the Financial Supervisory Service or the post distribution. Considering the fact that Defendant B paid the above garment money, etc., under the pretext of the maintenance of dignity, it cannot be evaluated that the credibility of L's statement is high.

4. Violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (Bribery) by method of discharging debts;

(a) The place of appeal

(1) Lack of intention to accept the bribe

Defendant B, while purchasing the instant land, took into account the market price gains that would have been earned at the time of sale, and did not intend to be exempted from the obligation to borrow loans from the H Savings Bank. In this regard, Defendant B expressed his intent to sell and repay real estate without consent of the Chairperson to the declaration of intention to discharge the obligation.

(2) Cancellation of a right to collateral security established on the land of this case, in which the effect of debt exemption was not effective, is to facilitate the sale of the above real estate, and is not to waive the intention of H Savings Bank to receive a debt, and thus, the obligation of Defendant B’s loan has not been finally extinguished. The Defendant, after the Defendant said that he would repay the loan to T, paid part of the loan amounting to KRW 80 million borrowed from the wife and promised to repay the remainder with retirement pay, and repaid the remainder as retirement pay, and even the remainder of the loan still remains, it cannot be deemed that the amount of debt exemption has been accepted as a bribe.

B. Determination

(1) Considering that the confession of the defendant in the investigation agency or the first instance court is different from the testimony in the appellate court, it cannot be deemed that there is any doubt about the credibility of the confessions. In determining credibility of confessions, considering the following: (a) the motive or reason behind the confessions itself is objectively rational; (b) what is the motive or reason for the confessions; and (c) the circumstances leading to the confessions do not conflict with the confessions and circumstantial evidence, it is necessary to determine whether there was any situation to give reasonable doubt about the motive or process of confessions under Article 309 of the Criminal Procedure Act, or that there was any change in the name of the defendant in the circumstance that the confessions and the court of first instance did not appear to have been given to the employees of the investigation agency or the court of first instance; and (b) the circumstance that the court below, after the confessions and the court of first instance, purchased the relevant land in the name of the defendant in question, to the extent that there was no evidence to be found in the court of second instance to have been developed during the process of the confessions.

(2) The effect of debt exemption occurs.

According to the circumstances shown in Section III-2. 2., it is reasonable to deem that the cancellation of the registration of the establishment of a neighboring mortgage established on the instant land was made as part of the offering of a bribe in accordance with the expression of intent to exempt a financial obligation. It is difficult to view that the sale of the said real estate is easy as Defendant B asserted.

5. As to collection

In this part of the facts charged pointed out by Defendant B, since Defendant B had L pay the purchase price for the instant BG and the purchase price for the instant household product, Defendant B shall be subject to the collection of additional charges. Therefore, without any need to further examine whether Defendant B’s remaining appeal is justified.

I. Determination on Defendant A’s grounds for appeal

1. Job relationship;

(a) Relevant legal principles;

Bribery is a process of performing official duties, social trust in the society, and the impossibility of performing official duties. It is not necessary to make a special solicitation to recognize the bribe of money and valuables received because the bribery does not require any solicitation or unlawful act concerning official duties. Moreover, it is sufficient that money and valuables have been received in connection with official duties, and there is no need to specify the act of performance of duties, and the bribe does not need to be performed in a specific manner, and it is not necessary to prevent the existence of a violation of an obligation or solicitation, the time of receipt of money and valuables, and before and after the act of performance of duties. Therefore, the "duty" in the crime of bribery refers to not only the duty prescribed in Acts and subordinate statutes, but also acts closely related to such duties or duties, as well as acts closely related thereto, in the past or in the future. Even if a public official does not actually take charge of duties according to the division of duties in addition to duties, such as duties, duties under the general authority or customs, or duties under the de facto control of a person with decision-making authority, and it does not include any benefits that public official has already received in official duties (see Supreme Court Decision 205Do.1363.65.

B. Determination

Based on the above legal principles, (1) around November 205, non-bank inspection stations were divided into two offices: (2) non-bank inspection departments; (3) non-bank inspection departments are basically necessary to deal with the business; (4) non-bank inspection departments were not related to the business of the non-bank inspection stations, and (4) non-bank inspection departments were not related to the business of the non-bank 1 and 2; (4) the non-bank inspection departments were not related to the business of the non-bank 1 and 100, and there were no specific tasks of the non-bank 1 and 90, and there were no specific tasks of the non-bank 1 and 10,000,000 among the non-bank 1 and 9,000,000,0000,000,000,0000,0000,0000,000,0000,000,000).

2. Whether the obligation is exempted;

In light of the following circumstances acknowledged by the record, i.e., the background leading up to lending and offering of bribe, the words and actions related to T exemption, and the degree of recognition of Defendant A, it is reasonable to view that the Defendants were exempted from the loan obligations in relation to the instant land in accordance with the donor’s expression of intent of exemption from the obligation, and accordingly, accepted a bribe equivalent to the amount of the said obligation. The judgment below is justifiable, and there is no illegality such as misconception of facts as alleged by the Defendant A.

(1) On September 204, 2004, the representative director T of H Savings Bank appears to have obtained a loan of purchase fund for AO land under the name of V and purchased the said AO land personally. Since then, T took the form of establishing a collateral security right (V) in the name of H Savings Bank as joint collateral, AG, which was in charge of a loan of V in the name of H Savings Bank at the time of the instant case, stated that T was obtained a loan by using the name of V at the time of the instant case, and 21) in light of the process of purchasing the instant land and the process of acquiring the Defendants, it is reasonable to deem that T was to have used corporate funds to purchase AO land under the name of 22) or to have actually lent the instant land to the Defendants.

(2) T determined that the loan can be offset to some extent due to the increase in land A0, and as a whole, made a consistent statement to the effect that, in the future, the employees of the inspection department of the Financial Supervisory Service, engaged in future inspections or inspections, the Defendant A, etc. was exempted from the loan obligations.23)

(3) We directly talk to Defendant B, S, etc. that “IO’s land value has increased and solely repaid the loan.” or “I’t have to bear any burden in repaying V loans. 24) L also stated that “B, etc. is “I have to have to have to have to have to have to have to have to have to hold the land.” The Defendant also knew of the statement to that effect directly or indirectly through W or B, etc. (C.26).

(4) In addition, in light of the fact that the Defendants were aware of the relationship between the Defendants at the time, the process of purchasing the instant land, and the fact that the Defendants were aware of the cancellation of the registration of the establishment of the neighboring land, Defendant A did not contribute to his money in the process of acquiring the instant land, and did not bear all the tax and public charges, civil engineering costs, development service costs, etc. incurred in the process of developing the electric power resource housing, and Defendant A did not appear to have expressed that he would not benefit from the discharge of obligations or transfer of ownership in the Z. In addition, it is reasonable to deem that Defendant A was aware that he was aware that he had completed the registration of the ownership transfer and acquired the transferred ownership, the ownership

(5) In relation to the land that has not been transferred to the employees of the Financial Supervisory Service, including the Defendant, but remains in the name of V, T states that “it is erroneous in the process of business to have been carried out as a security at the time of moving the name of the loan to the AJ. It is also necessary to bring the land to the H Savings Bank even at present.” On the contrary, in regard to the land that has been transferred to the Defendant, etc., by cancelling the collateral security of the H Savings Bank established thereon, T appears to have been trying to waive the collection of the loan claims against the Defendant,

(6) It appears that the WT and AG directors, etc., who were in charge of practical affairs on the part of the land allocated to the instant land by the H Savings Bank, are also deemed to have received free of charge. However, it cannot be said that T did not intend to have intended to have only the Defendants working with the UA supervisory agency to remain liable for the loan.

(7) The loan was made in the name of AJ in the name of the original lender in the name of BJ is deemed to have been made formally by borrowing the name of the person related to the savings bank at the time several months have elapsed since T expressed its intent to discharge the obligation, as for the purpose of pretending the offering of the instant loan by creating the appearance that the loan still exists in the name of V, despite the cancellation of the registration of the establishment of the relevant mortgage.

(8) On September 201, 201, the H Savings Bank’s side does not seem to have taken any measure to recover loans from the Defendants from the relevant authorities after lending the names of V until the business suspension is imposed.

(9) Meanwhile, as alleged by Defendant A, there appears some circumstances that Defendant A would have attempted to sell the land distributed among the land in this case through B after completing registration of transfer in his own name. However, the circumstances that Defendant A attempted to grasp the loan amount equivalent to his own share out of the loan amount of the land in this case at the time do not appear to have existed, and Defendant A appears to have been unaware of the fact of a substitute loan, and as seen earlier, Defendant A was aware of the acquisition of ownership that had not existed at the time of the sale of the land in this case. In light of the above, it is reasonable to deem that Defendant A intended not to adjust the loan amount to T through the sale of the land in this case, but to obtain profits from market price.

3. We examine whether the method of calculating the amount of bribe is illegal or not. The court below's decision on this part of the appeal was made in detail (17-21 pages). The additional circumstances acknowledged by the records, i.e., additional circumstances acknowledged by the records, i., ① the purchaser and joint purchaser representative with the defendant clearly stated that the purchase price is 80 million won (it is difficult to find a clear circumstance that AK would make a false statement on the record). The statement at the court below on the place of use related to cashier's checks 300 million won on September 9, 2004 as pointed out by the defendant A is not acceptable, such as that it conforms to the objective situation. ② The defendants and T is reasonable to have agreed that the transfer registration of ownership was made at the time of the initial sale price and development permission expenses of the land of this case, land survey and civil construction expenses, and since there was no intention to receive the transfer registration of ownership of the land of this case to the defendant, the size of the loan and the sale of the land of this case.

V. Conclusion

Therefore, among the part of the judgment of the court below against Defendant B, there are reasons for reversal as seen earlier. However, since each of the crimes committed by Defendant B, which was found guilty, is deemed to constitute concurrent crimes under the former part of Article 37 of the Criminal Act, the court below rendered a single sentence. Accordingly, the part of the judgment of the court below against Defendant B in its entirety cannot be reversed.

Therefore, without further proceeding to decide on the assertion of unfair sentencing by Defendant B, the part of the judgment of the court below on Defendant B regarding Defendant B is reversed, and the appeal by Defendant A is without merit, and it is dismissed in accordance with Article 364(4) of the Criminal Procedure Act.

Criminal facts and summary of evidence

The summary of the facts constituting an offense and the evidence acknowledged by this court is the same as the corresponding column of the judgment of the court below, and thus, it is cited in accordance with Article 369 of the Criminal Procedure Act.

Application of Statutes

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

Article 2 (1) 2 of the Act on the Aggravated Punishment, etc. of Specific Crimes, Article 129 (1) of the Criminal Act (in the case of paragraph (1) of the same Article, the upper limit of the punishment shall be governed by the main sentence of Article 42 of the former Criminal Act), Article 7 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (the point of acceptance of good offices, inclusive, and the choice of imprisonment)

1. Aggravation for concurrent crimes;

Articles 37 (former part), 38 (1) 2, and 50 of the Criminal Act

1. Discretionary mitigation;

Articles 53 and 55(1)3 of the Criminal Act (The following favorable circumstances):

1. Additional collection:

Article 134 of the Criminal Act, Article 10 (3), (2), and Article 7 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes

Grounds for sentencing

In addition to the instant crime, the Defendant did not have any criminal history, and appears to have served as a quasi-public official for a relatively long time, and the Defendant paid 80 million won to H Savings Bank in relation to the acceptance of bribe in the manner of debt exemption, and even in the case of bribe received from L, it appears that it would have been established by the need for business, but it appears that the Defendant appears to have some aspects of view that it would be based on the equilibrium-friendly relationship with L.

However, the Defendant, as an employee of the Financial Supervisory Service in charge of the inspection and supervision of savings banks in charge of the important part of the economy, received a large amount of money and valuables from the persons related to savings banks or persons closely related thereto who are subject to the inspection and supervision in violation of the duty of integrity required for their duties, and received money and valuables from time to time in the position to exercise influence on the employees of such savings banks even after the retirement of the Financial Supervisory Service. In light of the size of the amount of money received, the period of receipt and the frequency of receipt, and the number of receipt, etc., the crime is not less and less than the nature of the crime, and the Defendant denies the consideration for solicitation, etc., which are disadvantageously against the Defendant’s mistake. The punishment as ordered is determined by taking into account all the sentencing conditions indicated in the instant pleadings, such as the background and degree of participation, the Defendant’s age, character and conduct, and the environment.

Of the facts charged against Defendant B, the facts charged as to the illegal agency after the acceptance of the bribe are as shown in Section II-2(a). As examined in Section II-2(d) above, since the facts charged constitute a case where there is no evidence of crime, the above facts charged constitutes a case where there is no evidence of crime, and thus, the latter part of Article 325 of the Criminal Procedure Act is acquitted.

Judges

The presiding judge, judge and presiding judge

Judges, Appointment and Civility

Judges Shin Sung-sung

Note tin

1) On January 1, 2005, the officially assessed individual land price as of January 1, 2005, which was the part acquired by Defendant A, among the instant land.

12,600 won and 11,400 won are relatively low compared to other events (Evidence records: at least 11,400 won per M, maximum 22,00 won).

273 to 297 pages)

2) On the other hand, Defendant B appears to have participated in the process of acquiring BH I Savings Bank (BH I Savings Bank Chairperson B)

B BB Chairperson because he/she was able to seek advice on the overall process of acquiring management rights from time to time.

I Savings Bank's management intervention in the process of acquiring management rights, see, e.g., steam records 685 pages)

3) Defendant B expressed the motive for purchase that Defendant B attempted to have a director in Incheon as a Seoul because he was the children of the prosecution in early 2005.

(Evidence record 539 pages),

4) Evidence records 672, 739 pages

(v)record 739 pages

6) On the other hand, L made a statement that L was paid for the test expenses in the trial as the J-gu concept, and the fact that L was offered as a bribe in the prosecution.

L in light of the fact that there was a confession of B while requesting the prior wife (Evidence No. 675, 741 of the evidence record), L bears the burden before Defendant B.

Since it seems that he feel and made a passive statement according to the examination of his defense counsel, the credibility of the statement is not high.

7) The fact that 0 is due to the receipt of a request for purchase or establishment of a household, and that 0 is due at the time of the establishment of a household by Defendant B

In light of the fact that the sales contract is deemed to be prepared, L is the time when Defendant B prepares and occupies the actual sales contract.

I seem to have requested the purchase and installation of household products.In relation to this, I think that the prosecutor has requested the purchase and installation of household products.

Since the interior works or the purchase of home appliances was made in a state where the interior works were in force even if they were visited, whoever comes between them.

The director stated that there is no fact that he has moved into the company (Evidence No. 752 page).

L 1) L 1 40-5 million won, contained in the above 202.60,000 won, was requested by the head of the household to do so.

It is reasonable to view that it is included in the cost of building household under the pretext of earnings, etc. (the related tax invoice is issued around that time.)

c)in person;

9) Defendant B also denied the remainder of the fact that the amount was too large when the first investigation was conducted in the five-time statements made by the prosecution.

I think, I stated that it is appropriate to purchase the Rottemanian medicine under L's settlement (Evidence Records 637 pages), and the court below's decision.

All of the facts charged have been led to confession.

10) It is doubtful whether Defendant B had a tree planting experience.

11) It is difficult to believe that the statement of L/C to the effect that it goes against this is in bad faith.

12) Defendant B seems to have independent from post-retirement or dynamics even after his retirement (Evidence Record 775 pages)

13) From now on, the retirement of a person who is in a public position would not change the side of the four uniforms from now to now.

E. The Defendant B continued to use the two uniforms as before the end, because the two uniforms were different.P at the time of the Geumwon.

It stated that the store had been used more than one (Evidence No. 671).

14) Records of trial 150 pages

15) An act closely related to a legally controlled duty is not included in its scope of duty, but its position.

an act which may use a free position or affect its duties on the basis of its power on its authority and authority (tin)

Criminal Code (1), 342 pages)

16) See the evidence No. 2-1 to 11 of Defendant A’s submission

17) Evidence records 930 pages et al.

18) At around 2005, around November 2005, Defendants and R, and S, as the staff of the Financial Supervisory Service from the Credit Management Fund, have mutual friendly relations and represent H Savings Bank.

Directors T and the managing director W, etc., and H Savings Bank in the name of Defendant B’s proposal in the name of Defendant B, which is the relative of B.

With the loan, 16 land in AI was purchased and developed as a whole housing complex.

19) The trial records 141-142 pages

20) Evidence records 862 pages, 267

21) Evidence records 492-493 pages

22) There is room for constituting embezzlement or breach of trust.

23) Court records 139, 150 pages 150

24) Evidence records 858, 992 pages, 140 pages of trial records

25) Evidence records 858, records of public trial 103, 113

26) Defendant A’s registration of ownership transfer at the Financial Supervisory Service’s office around 2005, December 2005, whether Defendant A would engage in the registration of ownership transfer at the contact place.

Since they were written to this effect,

27) Evidence records 549 pages

심급 사건

-서울중앙지방법원 2012.7.31.선고 2012고합171

서울고등법원 2013.1.4.선고 2012노2639

-대법원 2013.4.11.선고 2013도794

참조조문

-특정경제범죄 가중처벌 등에 관한 법률

-특정경제범죄 가중처벌 등에 관한 법률 제7조

-특정경제범죄 가중처벌 등에 관한 법률 제10조 제3항

-특정범죄 가중처벌 등에 관한 법률

-특정범죄 가중처벌 등에 관한 법률 제2조 제1항 제2호