2019Do11478 (a) Business obstruction

B. Acceptance of bribe

(c) Violation of the Public Service Ethics Act;

(d) Property in breach of trust;

1. A.

2.(a)(c) B

3.(a) C

4.(a)D

5.(a) E

6.(c)F

7.(a) G

8.(a) H

9.C.I

10.c) d. J

11.c)K

Defendant A, B, G, H, J and Prosecutor (Defendant A, B, C, D, E, F, G, I, J.

K - As to K

Law Firm Elnbnb Partners (for Defendant A),

Attorney Kim Han-gi, Justice Kim Jong-chul, and Lee Jin-chul

Attorney Kim Jong-Un (Presiding Justice for Defendant B)

For a legal entity (for defendant B), a plaza with limited liability (for defendant B)

[Defendant-Appellant] Shin Young-chul, Lee Hong-chul, and Dunn

Attorney Dangerous, Kim Min-si, Kim Min-young, and Clinical (for the defendant C)

Law Firm Barun (Defendant D)

Attorney Lee Dong-hoon

Law Firm LLC (For Defendant F)

[Defendant-Appellee] The Head of Si/Gun/Gu Office

Law Firm LLC (Defendant H)

Attorney Kim Tae-hee, Park Ho-hee, and White-chul

Attorney Kim Jong-soo, and Park Jong-ju (Defendant I):

Law Firm K&L00 (For defendant J)

Attorney Han-ju

Law Firm Sejong (Defendant E)

Attorney Cho Yong-han, Attorneys Song Jae-chul, Lee Jae-chul

Seoul High Court Decision 2019Do459 Decided July 26, 2019

February 13, 2020

All appeals shall be dismissed.

The grounds for appeal are determined.

1. Judgment on the grounds of appeal by a public prosecutor

(a) Obstruction of business;

For the same reasons as the judgment of the court below, the court below found that Defendant C, D, E, and F participated in each business obstruction crime as stated in the facts charged against the above Defendants, and Defendant A, G, respectively, was not proven to the extent that there is no reasonable doubt as to whether they were involved in the crime of obstruction of business related to M and K employment. Accordingly, the court below acquitted Defendant C, D, E, and F of the above facts charged.

The allegation in the grounds of appeal is merely a dispute over the judgment of the lower court on the selection and probative value of evidence, which belongs to the free judgment of the fact-finding court. Even if examining the reasoning of the lower judgment in light of the relevant legal principles and evidence duly adopted, the lower court did not err in its judgment by misapprehending the legal doctrine on co-principal, or by exceeding the bounds of the principle of free evaluation of evidence, contrary to logical and empirical rules

B. Violation of the Public Officials Ethics Act 1) Defendant B

For the same reasons as the decision of the court below, the court below found it difficult to view AG as belonging to the employment-restricted institution stipulated in the Public Service Ethics Act at the time because AG established the FR and performed the FV affairs on the commission of the State's affairs, and found it not guilty of this part of the facts charged.

Examining the reasoning of the original judgment in light of relevant legal principles and the evidence duly admitted, the lower court did not err by misapprehending the legal doctrine on employment-restricted institutions prescribed by the Public Service Ethics Act or by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, contrary to what is alleged in the grounds of appeal.

2) Defendant F

For the same reasons as the judgment of the court below, the court below did not prove that the defendant received wages and salary periodically or periodically from AG by fixing a period of time, to the extent that there is no reasonable doubt. The court below found the defendant not guilty of this part of the prosecution.

Examining the reasoning of the original judgment in light of the relevant legal doctrine and the evidence duly admitted, the lower court did not err by misapprehending the legal doctrine regarding employment prescribed by the Public Service Ethics Act, or by exceeding the bounds of the principle of free evaluation of evidence, contrary to what is alleged in the grounds of appeal. 3) Defendant I part of the lower judgment

For the same reasons as the judgment of the court below, it is difficult to view that the association affiliated with the association is included in the limited association as prescribed by the main sentence of Article 33(2) of the former Enforcement Decree of the Public Service Ethics Act (amended by Presidential Decree No. 29013, Jul. 2, 2018; hereinafter the same) and therefore, AF does not constitute an employment restriction institution under the above provision, and it cannot be viewed differently solely on the ground that commercial banks are participating in AF as a special member. Thus, the court acquitted the defendant on this part of the

Examining the reasoning of the original judgment in light of the relevant legal principles and the evidence duly admitted, the lower court did not err by misapprehending the legal doctrine regarding the employment-restricted institution prescribed by the Public Service Ethics Act, as alleged in the grounds of appeal, or by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules.

For the same reasons as the judgment of the court below, the court below found that the defendant was employed by H and HI, a real employment-restricted institution, was not proven to the extent that there is no reasonable doubt, and determined that this part of the public prosecution was not guilty.

The allegation in the grounds of appeal is nothing more than dispute over the judgment of the lower court on the selection and probative value of evidence belonging to the judgment of the fact-finding court. Even if examining the reasoning of the lower judgment in light of the relevant legal principles and evidence duly admitted, the lower court did not err by misapprehending the legal doctrine regarding employment prescribed by the Public Service Ethics Act, or by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, contrary

C. On the grounds as indicated in the judgment below, the court below found Defendant J not guilty of this part of the prosecution on this ground, on the ground that even if Defendant J received the request from HL to assist the HJ grade evaluation to obtain well-grounded HJ grade evaluation, such entrustment was not proven to the extent that there is no reasonable doubt that it constitutes an illegal solicitation against the HJ grade evaluation member’s duties, social rules, and good faith.

The allegation in the grounds of appeal disputing the determination of the lower court’s fact-finding is nothing more than denying the lower court’s determination on the selection and probative value of evidence, which belongs to the lower court’s free judgment. In light of the relevant legal principles and evidence duly admitted, the lower court did not err by misapprehending the legal doctrine regarding the crime of taking property in breach of trust or by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, contrary to what is alleged in the grounds of appeal.

2. Judgment on Defendant A’s grounds of appeal

For the same reasons as the judgment of the court below, the court below determined that the defendant's intention, public invitation, functional control, and the exercise of power to the victimized enterprise was recognized as to the fact of obstruction of business except for the obstruction of business related to M employment.

The allegation in the grounds of appeal is merely a dispute over the judgment of the lower court on the selection and probative value of evidence, which belongs to the freedom judgment of the fact-finding court. In light of the relevant legal principles and evidence duly admitted, the lower court did not err in its judgment by misapprehending the legal doctrine on the victims of conspiracy, co-principal and obstruction of business affairs, failing to exhaust all necessary deliberations, omitting judgment, or exceeding the bounds of the principle of free evaluation of evidence in violation of logical and empirical rules, contrary to what is alleged in the grounds

3. Judgment on Defendant B’s ground of appeal

For the same reasons as the judgment of the court below, the court below determined that the defendant's employment opportunity to his/her husband and wife provided by BJ constitutes a bribe because it was provided in return for his/her duties.

The allegation in the grounds of appeal disputing the determination of the lower court’s fact-finding is merely an error in the determination of the lower court’s choice of evidence and probative value, which substantially belongs to the lower court’s free judgment. Examining the grounds of the lower judgment in light of the relevant legal principles and evidence duly admitted, the lower court did not err by misapprehending the legal doctrine on the relationship to duties, quid pro quo, property interest, and intent in the crime of bribery, or by exceeding the bounds of the principle of free evaluation of evidence contrary to logical and empirical rules, contrary

Although Defendant asserted to the effect that the fact-finding was based on the evidence illegally collected by the lower court, such argument is not a legitimate ground for appeal as it asserted in the ground of appeal that it is not a legitimate ground for appeal or that it is not subject to judgment ex officio (see, e.g., Supreme Court en banc Decision 2017Do16593-1, Mar. 21, 2019). In light of the relevant legal principles, even if examining the above, the lower court did not err in its judgment in its determination, thereby affecting the conclusion of the judgment.

According to Article 383 subparag. 4 of the Criminal Procedure Act, an appeal on the grounds of unfair sentencing is allowed only in the case where death penalty, life imprisonment, or imprisonment or imprisonment without prison labor for not less than ten years has been sentenced. Thus, the argument that the determination of the sentence is unreasonable against the defendant in the case where the defendant was sentenced to a minor punishment cannot be justified and justified.

4. Defendant G

Defendant did not submit a statement of grounds for appeal within the submission period of the written grounds for appeal and did not state the grounds for appeal in the petition of appeal.

5. Judgment on Defendant H’s ground of appeal

For the same reasons as the decision of the court below, the court below judged that the defendant interfered with the business of the victimized company by exercising power.

The argument in the grounds of appeal is merely a dispute over the judgment of the lower court on the selection and probative value of evidence belonging to the free judgment of the fact-finding court. Even if examining the reasoning of the lower judgment in light of the relevant legal principles and evidence duly adopted, the lower court did not err in its judgment by misapprehending the legal doctrine on the obstruction of business or by exceeding the bounds of the principle of free evaluation of evidence against the legal principles of logic and experience as alleged in the grounds of appeal.

According to Article 383 subparag. 4 of the Criminal Procedure Act, an appeal on the grounds of unfair sentencing is allowed only in a case where death penalty, life imprisonment, or imprisonment or imprisonment without prison labor for not less than ten years has been sentenced. Thus, the argument that the Defendant’s decision on the punishment of imprisonment is unreasonable is not a legitimate ground for appeal.

6. Judgment on Defendant J’s ground of appeal

For the same reasons as the judgment of the court below, the defendant was employed as professor of the EA University and non-permanent adviser of BY corporation before the expiration of the employment restriction period.

The allegation in the grounds of appeal is merely a dispute over the judgment of the court of fact-finding on the selection of evidence and probative value, which belong to the free judgment of the court of fact-finding. In light of the relevant legal principles and evidence duly admitted, the lower court did not err in its judgment by misapprehending the legal principles on employment restrictions prescribed by the Public Service Ethics Act, failing to exhaust all necessary deliberations, or exceeding the bounds of the principle of free evaluation of evidence, contrary to what is alleged in the grounds of appeal

7. Conclusion

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

Justices Ansan-chul

Justices Park Sang-ok

Justices Noh Jeong-hee

Justices Kim Jae-hwan of the District Court