Defendant

Defendant

Lee Jae-deok

Attorney Park Su-soo

Busan District Court Decision 2006Gohap159 Delivered on July 7, 2006

The judgment of the court below is reversed.

A defendant shall be punished by imprisonment for one year.

The ninety-five days of detention before the pronouncement of the judgment below shall be included in the above sentence.

1. Summary of grounds for appeal;

A. Error of mistake

The defendant would not interfere without being designated as the object of tax investigation, so long, the defendant did not receive the above 10 million won request from the non-indicted 1, who was able to do so. After that, the non-indicted 1 thought that the defendant will come to go to the above 10 million won, and that the non-indicted 1 would come to go to the above 10 million won at the stage of the case, and he was aware of the fact that he was in the above 10 million won at all, and then returned it later. Even though the defendant did not intend to obtain the above 10 million won, the defendant was only with the intention to obtain the above 10 million won, but did not intend to obtain the above 10 million won, it was erroneous in the judgment of the court below that there was an intention to obtain the above 10 million won, and that there was an intention to obtain the above 10 million won, and that there was an intention to obtain the above 10 million won, which affected the conclusion of the judgment.

B. Unreasonable sentencing

The punishment sentenced by the court below (five years of imprisonment) is too unreasonable.

2. Determination on the grounds for appeal

A. Summary of the facts charged

From February 19, 2003 to August 31, 2005, the Defendant is a tax official in charge of the investigation of individual property tax in the Busan Regional Tax Office (name omitted);

On May 24, 2005, around 14:00, at 400, 1408-5, the 1408-5, the Pacific Daegu, Busan, Busan, the 1408-5, and the Nonindicted Party 1 received a bribe in relation to its duties after receiving one bank with the 100 million won in cash, in relation to the tax investigation on interest income received from the deceased Nonindicted Party 3, with respect to Nonindicted Party 1’s “The results of the investigation are recognized and the confirmation document is prepared without any additional investigation on the details of other financial transactions.” The deposit of interest was made in the name of Nonindicted Party 3, and the deposit was made in the name of Nonindicted Party 3, and received a bribe in relation to its duties.”

B. The judgment of the court below

On the other hand, the court below found the above facts charged guilty by taking into account the adopted evidence.

C. The judgment of this Court

(1) According to the evidence duly admitted by the lower court and the testimony of Nonindicted Party 1 and 2, the Defendant unilaterally received the above amount of 00 million won from Nonindicted Party 1 to Nonindicted Party 1’s request for tax investigation, and then discovered that Nonindicted Party 1’s annual income tax was omitted for about 84 billion won received from the Deceased while investigating the inheritance tax reported by Nonindicted Party 3 around March 2005, and demanded the Defendant to prepare a written confirmation to the effect that the amount of 40 million won would be recognized as having arrived at the above amount of 0 billion won from April 2005, and that Nonindicted Party 1 would not be required to return the amount of 10 billion won to Nonindicted Party 1’s gross income. However, if the Defendant did not respond to the request of Nonindicted Party 1 to prepare a written confirmation that Nonindicted Party 1 would be subject to tax investigation, the Defendant would not be able to obtain additional tax investigation on the other details of 10 billion won.

(2) The establishment of the bribery is not affected even in a case where the bribe was accepted with the intention of accepting it, but the amount was so excessive that it was kept as the intention to return it later. However, in a case where the receiver issued the bribe much more than the amount of the bribe due to mistake, etc. and the consignee returned the bribe after the consignee had delayed after the fact was delayed, the determination shall be made by comprehensively taking into account all the circumstances such as the amount of the bribe which the consignee intended to receive, the number of the bribe which the consignee actually delivered, whether the consignee knew or could know the amount of the bribe at the time of receiving it, whether the consignee knew or could know the amount of the actual bribe at the time of receiving it, and the contents of the measure taken after checking the amount of the bribe.

On the other hand, the following circumstances revealed by the above facts, namely, whether the Defendant would not interfere with the above additional tax investigation without being designated as the person subject to 10 billion won or not. It seems that Nonindicted Party 1 would have been thought that there was a gift and 10 million won at the same time, and that the Defendant would have been able to receive the above additional tax investigation with the intention of receiving a large amount of 10 million won or larger, and that the Defendant would have not been able to receive the above global income tax exemption from 10 billion won or more, even if 10 million won was able to receive the above additional tax investigation, and the Defendant did not appear to have been able to receive the above global income exemption from 10 billion won or more under the pretext of having been able to receive the above global income tax investigation by 10 billion won or more (in particular, 200 million won was entered as his superior, but the Defendant did not have been able to receive the above additional tax investigation from 100 million won or more in light of the fact that the Defendant did not actually receive the above global income tax amount.

Therefore, the facts charged in this case premised on the Defendant’s intent to obtain the entire KRW 100 million in excess of the above KRW 10 million constitute a case where there is no evidence of a crime. Even though the lower court found all of the charges guilty, thereby misunderstanding the facts and committing an unlawful act affecting the conclusion of the judgment, the above argument by the Defendant is with merit.

3. Conclusion

Therefore, the appeal by the defendant is reasonable, and without examining the grounds for appeal by the defendant on the grounds of unfair sentencing, the whole judgment of the court below is reversed, and it is again decided as follows.

The summary of the facts constituting an offense recognized by this Court and the evidence thereof are cited as it is, except for adding “a bank with cash of KRW 10 million” to “one” following the second page of the judgment of the court below, since it is the same as the description of each corresponding column of the court below.

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

Article 129 (1) of the Criminal Act (Selection of Imprisonment)

1. Inclusion of days of detention in detention;

Article 57 of the Criminal Act

The facts charged of this case are as stated in the above judgment 2. A. (a). As seen in the judgment on the grounds of appeal as seen earlier, since the facts charged constitute a case where there is no proof of crime, it should be pronounced not guilty pursuant to the latter part of Article 325 of the Criminal Procedure Act, but as long as it is found not guilty of the acceptance of bribe in the judgment related to this crime, the judgment of not guilty shall not be

Judges Park Sung-sung (Presiding Judge) Kim Jong-tae