2013No550 Bribery, Violation of the Petroleum and Petroleum Substitute Fuel Business Act

A

Both parties

Cho Jae-chul, Lee Jae-in, and Lee Jae-in

Law Firm B

Attorney in charge C, BF

Daejeon District Court Decision 201Na138, 152 decided November 20, 2013

2) Judgment

February 19, 2014

The guilty portion of the judgment of the court below shall be reversed.

A defendant shall be punished by imprisonment for a term of one year and two months.

The prosecutor's appeal against the acquittal portion of the judgment below is dismissed.

1. Summary of grounds for appeal;

(a) A prosecutor;

(1) misunderstanding of facts and misapprehension of legal principles

(Opening) According to evidence of the violation of the Petroleum and Petroleum Substitute Fuel Business Act following the failure to conduct a quality inspection of the CP-3820 product, even if the CP-3820 product is recognized as a petroleum product subject to quality inspection that was not used in the export product, the court below found that the above product sold by L-3820 product was sold for the use in the export product and was highly likely to be excluded from the product subject to quality inspection in accordance with the relevant provisions, and found the Defendant not guilty of this part of

H H-80 Violation of the Petroleum and Petroleum Substitute Fuel Business Act due to failure to conduct quality inspections of products

According to evidence, although the defendant reported the H-800 (No. 10), which is a petroleum product, as an exclusion product, and sold them as a false product, and did not undergo the quality inspection of the Institute, the court below found the defendant not guilty, but found the defendant not guilty of the fact, which affected the conclusion of the judgment.

(2) Unreasonable sentencing

The sentencing of the court below (one year and six months of imprisonment) is too unhued and unfair.

B. Defendant

The sentencing of the court below is too unreasonable.

2. Determination

A. Ex officio determination of the offering of a bribe (as to the offering of a bribe among the facts charged in the instant case)

(1) Facts charged

The defendant corporation (hereinafter referred to as "L") was subject to a regular tax investigation by the Daejeon Regional Tax Office from August 31, 2010 to October 4, 2010 (tax period 2: 2006).

On October 2010, the Defendant issued a cash of KRW 20 million to AD for tax officials belonging to the Daejeon Regional Tax Office (Grade 6), a tax official in charge of the said tax investigation, who was a tax official in charge of the said tax investigation, at a rest room room located in Sing-ri, Seogyeong-si, Sinyeong-si, Sinjin-si, and for the purpose of providing future convenience. Accordingly, the Defendant offered a bribe to AD in relation to the duties of public officials.

(2) The judgment of the court below

The court below acknowledged the credibility of the defendant's statement that AD gave a bribe of KRW 20 million to AD, and rejected AD's statement denying this, and found the defendant guilty of this part of the facts charged.

(3) The relevant legal principles apply to the judgment of the court.

In order to find a defendant guilty of the facts of the bribery in the absence of any physical evidence, such as financial materials to support the fact of the bribery, there should be evidence of the witness's statement, and there should be credibility enough to exclude a reasonable doubt. In determining the credibility of the statement, not only the rationality, objective reasonableness, consistency before and after the statement itself, but also its human beings; in particular, if there is a suspicion of a crime committed against him/her, and there is a possibility that an investigation may be initiated, or if an investigation is being conducted, there is a possibility of using it, and even if the admissibility of the statement does not reach the extent that the evidence of the statement is denied, it should also be examined together, such as whether there is a concern about intimidation, revolving, etc. and there is a possibility that the statement might affect the statement (see Supreme Court Decision 200Do5701, Jun. 11, 2002).

B. In the instant case

The defendant is confessioning that he provided money and valuables to AD from the investigative agency to the trial of the party.

However, in full view of the following circumstances acknowledged by the record, it is difficult to grant credibility to the defendant's above statement, and it is insufficient to recognize that the defendant offered a bribe of KRW 20 million to AD only with other evidence submitted by the prosecutor.

① The Defendant was arrested and detained on suspicion of violating the Petroleum and Petroleum Substitute Fuel Business Act, and was investigated by the prosecution, and the previous criminal facts have been consistently denied. On June 12, 2013, the Defendant led to the confession of this part of the facts charged, which led to AD’s 20 million won at an interview with the prosecutor on June 12, 2013, and subsequently led to the confession of all of the facts charged. On June 13, 2013, the following day, the said Petroleum and Petroleum Substitute Fuel Business Act was also made. The Defendant appears to have caused severe pressure during the investigation process, such as being investigated more than 40 times after being arrested and detained due to shock, etc., for the purpose of escaping from pressure and reducing his criminal liability, and at the same time, led to the confession of this part of the facts charged.

With respect to the opportunity to make a confession of this part of the facts charged, the Defendant made a statement to the effect that various materials are seized and analyzed in the course of the investigation into the said Petroleum and Petroleum Substitute Fuel Business Act, and that among the materials, the content of the agreement with the tax accountant (AU) and the materials supporting him/her are expected to be conducted, and that the investigation into said materials are true. However, as the above Defendant’s statement, the materials seized at the time when they were made are merely the materials for entering into an agreement with the AU with regard to L’s regular tax investigation (hereinafter “instant tax investigation”), and there is no materials about the fact that he/she paid money to AD. Thus, even if seizure and analysis of the above materials are conducted, there is no possibility that the investigation into the part regarding AD, which is not the part regarding AU, may not be conducted, it is not persuasive.

(3) AD, which received money from the Defendant, denies the receipt of a bribe as soon as possible, and there is no financial evidence to support the receipt of the bribe.

(4) As to the reason for accepting a bribe, the Defendant stated that the Defendant formed a meaning and connection as a case of the influence of the instant tax investigation and received assistance in the future. However, even though the Defendant provided other tax officials with KRW 200,000 or KRW 4 million to AD who works in a tax office other than the competent tax office for the purpose of connection management, it is relatively excessive for the purpose of connection management. Since the Defendant provided other tax officials with the said money, the Defendant provided KRW 20,000 to AD who worked in a tax office other than the competent tax office for the purpose of connection management, and thus, it is relatively excessive for the purpose of connection management. Even though having provided the said money, even though L Company was at risk of being collected from the Daejeon regional tax office after the instant tax investigation, it was the Defendant’s statement that the Defendant did not request any assistance from AD even though L Company was at risk of being collected from the Daejeon regional tax office.

⑤ Before giving money to AD, the Defendant already stated that AU had already given 27,50,000 won to AU under the pretext of expenses for public officials in relation to the tax investigation. Such payment to AU does not completely confirm whether AU delivered the above 3 million won out of the above 27,500,000 won to AD (in fact, AU gave 2,750,000 won to AD), and it seems very natural that AU separately gives AD a statement about the 27,50,000 won out of the above 27,50,000 won from L Co., Ltd. (On the other hand, the above AU does not clearly explain the statement about the 27,50,000 won out of the above 27,50,000 won to AU).

6) If the Defendant, like the Defendant’s statement, provided money to AD for the meaning of audit results of the instant tax investigation or for the meaning of connection formation, it appears to have given convenience to AD and delivered money to AD only at a place close to that place of work (on the contrary, when the Defendant delivered money to another tax official, he sent money to the restaurant in the area where he is working or near the place where he is receiving education). However, the Defendant delivered money to AD only at the rest of the rest of the rest of the rest of the rest of the rest of the rest of the rest of the rest of the rest of the rest of the rest of the rest of the rest of the rest of the rest of the rest of the rest of the rest of the rest of the rest of the rest of the AD.

In this regard, the Defendant stated to the effect that the Defendant selected the rest area as a place in South and North Korea because the rest area was well-populated, but the rest area is more and more active than the Defendant’s vehicle and the office is open to the public, so the above statement is not persuasive.

C) Sub-determination

Therefore, even though the evidence submitted by the prosecutor alone cannot be deemed to have been proven beyond reasonable doubt as to the fact that the Defendant offered money to AD, the lower court’s judgment that found the Defendant guilty was erroneous and adversely affected the conclusion of the judgment.

B. Judgment on the prosecutor's assertion of mistake

In full view of the circumstances indicated in its holding, the lower court found the Defendant not guilty of each of the charges on the grounds that: (a) as to the violation of the Act on the Petroleum and Petroleum Substitute Fuel Business due to the failure to conduct a quality inspection of the products, the above products are petroleum products sold to be used in the goods and are highly likely to be excluded from the goods subject to the quality inspection; and (b) the evidence submitted by the prosecutor alone is insufficient to recognize that the above products are petroleum products subject to the quality inspection that have not been used in the goods; and (c) as to the violation of the Act on the Petroleum and Petroleum Substitute Fuel Business due to the failure to conduct a quality inspection of the products, it is insufficient to recognize that the evidence submitted by the prosecutor alone alone did not

Examining the reasoning of the lower judgment in comparison with records, the lower court’s fact-finding and judgment are acceptable.

3. Conclusion

Therefore, there exists a ground to reverse the facts of offering of a bribe among the guilty portion of the lower judgment, and the lower court deemed the fact of offering of a bribe and the fact of violating the Act on the Business of Petroleum and Petroleum Substitute Fuel to be concurrent crimes, and thus, the remaining part of the lower judgment may no longer be maintained. Therefore, the lower court determined that the guilty portion among the lower judgment is reversed pursuant to Article 364(2) of the Criminal Procedure Act without determining the grounds of appeal on the grounds of unfair sentencing by the Defendant and the prosecutor pursuant to Article 364(2) of the same Act, and that the prosecutor’s appeal on the acquitted portion of the lower

Re-used Judgment)

Criminal facts

From March 3, 2004, the Defendant, as the actual operator of L Co., Ltd. (hereinafter referred to as “L”) established for petroleum refining business, made a final decision on L’s personnel affairs, financial affairs, and management while serving as the president. In addition, from April 14, 1999, the Defendant served as the president of L Co., Ltd. (hereinafter referred to as “N”) engaging in the special cargo transport business, such as oil, waste, solvents, etc., in L’s M in Suwon-si, Suwon-si, Suwon-si, the Defendant made a final decision on N’s cargo transport business. This was from July 1, 2010 to August 31, 201, P, as the president from September 1, 2011, comprehensively controlled N’s cargo transport business while working as N.

1. Supply of fake petroleum raw materials;

No person shall supply, sell, store, transport, or keep petroleum products for the purpose of manufacturing or using them as fake petroleum products.

Nevertheless, the Defendant processed Hydro Cracked Glas's Otile, and produced solvents 7 and 10, which are petroleum intermediate products supplied by Q Q, with the knowledge of the fact that agents such as R (representative S) and T (Representative U) supply solvents 7 and 10 to the manufacturers of fake transit, and supply the above solvents 7 and 10 to the above solvents agents, and the Defendant, 0, P, with the knowledge of the fact that the above solvents agents supply solvents 7 and 10 to the manufacturers of fake transit, 70,000,000,000,000,000,000,000,000,000,000,000,0000,000,000,000,000,000,000,000,00,000,00,000,00,00,000,00,00.

Accordingly, the Defendant supplied petroleum products as above for the purpose of manufacturing and using fake petroleum products, and transported petroleum products as above in collusion with 0 and P for the purpose of manufacturing and using them as fake petroleum products.

2. Where any petroleum refiner that has failed to conduct a quality inspection sells petroleum products, such as solvents, he/she shall undergo a quality inspection by the Institute;

Nevertheless, in order to facilitate the sale of solvents 10 that is used as a raw material, the Defendant had to report the supply and demand situation to the Institute and undergo a quality inspection, which makes it difficult for the Defendant to sell them. In order to facilitate the sale of solvents 10 that is used as a raw material for fake transit, the Defendant did not report the supply and demand situation and sold them as an exclusion product without undergoing the quality inspection.

From April 1, 2009 to October 31, 2010, the Defendant reported and sold to 11 companies, such as AB and AC about 37,926,783 liter market value of 45.55 billion 1,213,00 won as an exclusion product, and did not undergo the quality inspection of the Institute.

Summary of Evidence

The relevant column of the judgment of the court below is as follows.

Application of Statutes

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

(a) The facts set forth in subparagraph 1: Article 44 subparagraph 3 of the Petroleum and Petroleum Substitute Fuel Business Act and Article 29 (1) 3 (the supply, sale, and transportation of petroleum products for the purpose of manufacturing and using fake petroleum products, inclusive, and the choice of imprisonment);

(b) Facts of Article 2: Article 45 subparagraph 4 of the Petroleum and Petroleum Substitute Fuel Business Act and Article 25 (1) of the same Act.

1. Aggravation for concurrent crimes;

Articles 37 (former part), 38 (1) 2, and 50 (in the case of concurrent crimes prescribed in the crime of violating the Petroleum and Petroleum Substitute Fuel Business Act due to the supply of petroleum products for the purpose of manufacturing and using fake petroleum products with the largest punishment) of the Criminal Act

The crime of this case on the grounds of sentencing is a case where the defendant manufactures and supplies petroleum products for the purpose of enabling them to manufacture and use fake petroleum products, and carries them, and the Institute evades the quality inspection of the Institute so that appropriate petroleum products are sold by avoiding the quality thereof, and it is inevitable to impose punishment on the defendant on the grounds that there are no substantial social ripple effects on the crime. However, the defendant does not seem to have produced petroleum products with the main purpose of enabling them to manufacture and use fake petroleum products by means of petroleum sophistication facilities construction and pursuing diversification of products by making large facility investments. The fact that the defendant does not seem to have produced petroleum products with the main purpose of enabling them to manufacture and use fake petroleum products, such as promoting the diversification of products, which is contrary to the recognition of the crime of this case, and all other sentencing conditions against the defendant shall be determined as ordered

The presiding judge, judge and assistant judge;

Judges Lee Hyun-woo

Judges Kim Dong-dong

1) In response to the offering of a bribe in this part by the Defendant, a public prosecution was instituted against AD with acceptance of bribe, etc., and the prosecution was conducted in the Daejeon District Court's astronomical support

AD and Prosecutor appealed therefrom, and the appellate court judgment (not guilty in the case of acceptance of bribe) was rendered on the same day as this case.

Daejeon High Court 2013Do476)

2) The indictment contains the period of investigation from 2008 to 2010. However, in full view of the evidence, the taxable period subject to investigation is from 2006 to 2006.

Since it is recognized as 2009, the above statement was revised.

3) The date of change of the representative director on the registry is October 10, 201, but the actual period of service is same as that mentioned above.

(iv) The scope of the light point from 140 degrees to 380 degrees, the scope of the light point from 140 degrees to 300 degrees from 140 degrees to 100 degrees, and the scope of the light point from 10 degrees to 300 degrees from 140 degrees.

380 degrees from 170 degrees to 380 degrees, if solvents 7 and solvents 10 are mixed, they correspond to the range of non-point points in transit, braille, heat, etc.

Manufacturers of fake transit with very satisfy and satisfying, shall have the mixture of transit and solvents 7 and solvents 10 70:30 or 60:40

I will manufacture fake transit.

5) The instant L production solvents is ordinarily distributed in the market for lux oil (raw materials of lubric oil) and lubin contains a large quantity of lubin ingredients.

L production solvents is very low in the core sexual luxity of active oil. For this reason, L production solvents may be used as a raw material of high-class lux oil.

There is no choice but to be used as a low-quality metal sharing (e.g., cutting, washing, and attending). In the end, among the market demand for whole solvents, it is inevitable to use it as a low quality metal sharing.

The demand for the above metal-sharing is merely 5 to 8%. Ultimately, L production solvents is almost in the market in a normal way.

In spite of the absence of the normal demand of the market, [28.1 billion won in 2005, 26.8 billion won in 2006]

The enormous amount of KRW 38.9 billion in 2007, KRW 35.0 billion in 2008, KRW 48.3 billion in 2009, KRW 77.5 billion in 2010, and KRW 40.5 billion in 2011.

The sales have been achieved.

6) The solvents agents, such as R, T, and Y, leased solvents storage tanks to the Z, voice materials AA, etc. located in Pyeongtaek-si, and stored solvents therein.

false contracts and false tax invoices as if they were sold to normal customers, but in fact, the above tank terminal

the name influor who manufactures fake transit is used as a manufacturing place for fake transit, and the foregoing solvents is used by the above name influor.

It was used as a raw material for fake transit, and produced fake transit was illegally supplied to a large number of stations across the country.

7) In the event of reporting as an solvents, consumers should report the status of supply and demand as well as L, the same producers, as L, and the consumers should report.

The exclusions from solvents (leaping, etc.) shall be preferenceed to solventss, and solvents shall be purchased from among similar performance products.

8) The product name of solvents produced L constitutes solvents 10 in accordance with quality standards.