A violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (Bribery)

A

Defendant

Sheet Kim (Court) (Courtrooms), book-type, last order (Courtrooms)

Law Firm B

Attorney in charge C, D

Law Firm (LLC) LLC

Attorney in charge CV, CW

Seoul Central District Court Decision 2014Gohap1079 Decided January 30, 2015

July 24, 2015

The defendant's appeal is dismissed.

1. Summary of grounds for appeal by the defendant;

A. misunderstanding of facts and misapprehension of legal principles

1) Although the Defendant provided meals with Y, X and Y, the lower court found the Defendant guilty of committing the crime of bribery on the grounds of the Defendant’s statement of Y, X without credibility as follows, although the Defendant did not receive KRW 65 million over 11 times as indicated in the lower judgment, the lower court convicted the Defendant of all of the charges of bribery. The lower court erred by misapprehending the legal doctrine, thereby adversely affecting the conclusion of the judgment.

가) Y의 진술은 매우 추상적이고, AC 전 한국철도시설공단(이하 '철도시설공단'이라 한다) AB 등 다른 공무원들에게 지급한 방식과는 완전히 다른 방식으로 돈을 건넸다고 진술하고 있다.

B) Y was sufficiently well-founded to make a false statement to the Defendant that provided a bribe to the Defendant in the event of the commencement of an investigation into the Korea Railroad Facility Corporation and the Board of Audit and Inspection by making illegal expenses against him/her, and the defense as to the background leading up to the reversal of his/her statement is not completely persuasive, and is inconsistent with X’s statements.

C) Y does not have any actual criminal prosecution or criminal punishment, and the source of funds delivered to the Defendant is also unclear.

D) X’s statement that Y considered the Defendant to pay money is also not consistent with the unilateral statement and consistent with X’s economic subordinate to Y.

2) Even if the credibility of X’s statement is recognized, the fact that X stated that X had observed the fact of delivering money and valuables from an investigative agency to the court of the court below is merely a single time, and only this part of the crime list 1, 5, 7, and 11, should be found guilty. (b) The misapprehension of the legal principles as to the comprehensive crime

The judgment of the court below is erroneous in the misapprehension of legal principles as to the comprehensive crime, since all of the defendants who have no unity and continuity of crime are 11 times more than 2 years and 1 months.The judgment of the court below is erroneous in the misunderstanding of legal principles as to the comprehensive crime.The misunderstanding of legal principles as to the violation

Article 2(1)2 of the Act on the Aggravated Punishment, etc. of Specific Crimes shall apply to the case where the court below recognized the defendant as a comprehensive crime of acceptance of bribe and applied Article 2(1)2 of the Act on the Aggravated Punishment, etc. of Specific Crimes since the sum of the amount of the acceptance of bribe is more than 50 million won. However, the above provision of the Act provides that statutory punishment shall be aggravated according to the amount of the acceptance of bribe. If the defendant takes a small amount of bribe over a long-term period as a comprehensive crime, and is punished by applying the above Act based on the total amount of the acceptance of bribe, it would result in the defendant being subject to an unexpected penalty,

D. Unreasonable sentencing

The punishment sentenced by the court below (the penalty of four years of imprisonment, the fine of 70 million won, and the penalty of 65 million won) is too unreasonable.

2. Determination:

A. As to the assertion of mistake of fact

1) Whether the statement is credibility or credibility

원심이 적법하게 채택하여 조사한 증거들에 의하여 인정한 사실에 당심에서 추가로 인정하는 아래와 같은 사정에 비추어 보면 X와 함께 피고인을 만나 피고인에게 원심 판시 범죄일람표 기재와 같이 11회에 걸쳐 합계 6,500만 원을 건넸다는 Y의 진술은 신빙성이 충분히 인정되므로, 피고인의 주장은 이유 없다.

A) The status of P as at the time of the Defendant’s delivery

① As the representative director of a P Co., Ltd. (hereinafter referred to as “P”), Y was competing with S who is a competitor in order to be designated as a material supplier for the T-RR in 2012. At the time, S has been under the audit of the Board of Audit and Inspection with respect to the revolving device that was ordered by the Korea Rail Network Authority and supplied by U, etc. to the second phase of the T-V high-speed rail installed by the Korea Rail Network Authority, while the audit of the Board of Audit and Inspection was in progress with respect to the revolving device that was supplied to the second phase of the B-V high-speed rail. While the audit results by the Board of Audit and Inspection made efforts to reflect the Defendant as they were in terms of the criteria for selecting the material supplier of the Korea Rail Network Authority, the Defendant was first released from X-party unit, an adviser of P on November 3,

③ Y explained the problems of the re-transmission system at the second stage of light-speed rail supplied by S in the first place of the Defendant, who was performing activities as K members, and explained the problems of the re-delivery system supplied by S as the chairperson of the National Assembly Ethics Special Meeting of the Republic of Korea. After December 30, 201, Y explained the Defendant as to the problems of the re-delivery system supplied by S in the first place of the first place of the high-speed rail. On February 7, 2012, Y provided the same explanation to the Defendant.

(4) Y has explained such details to the Defendant so that the audit results by the Board of Audit and Inspection may not be reversed by continuously pointing out the problems of the settlement system of the same company against the Korea Railroad Facility Corporation, which has a influence on the construction company, as an ordering authority of the T-high-speed railroad business after the first call.

B) The credibility of the reversal statement

① The Defendant asserted that Y was under investigation by the Board of Audit and Inspection and the Railroad Facilities Corporation for illegal expenses, such as offering of bribe, and that the investigation of Y’s Pmaz cash flow was conducted, and that the Defendant made a false statement on the fact of offering of bribe to the Defendant, who was the four-line incumbent four-line public officials, in order to prevent additional investigation into himself/herself and the company.

Y It is true that the prosecutor’s investigation before August 7, 2014 made a statement to the effect that the Defendant did not pay any money to the Defendant, and reversed the statement to the effect that, unlike the previous prosecutor’s statement, the Defendant gave up KRW 5 million on nine occasions between July 30, 2012 and July 3, 2014 and July 27, 2014, different from the previous prosecutor’s statement.

③ Y The Defendant, who was in his own name, excluded S from the aid of the Defendant and AC, entered into a supply contract with the construction company, including U, etc. for T-high-speed rail connection devices. At the time of the National Assembly member and the National Assembly member, in order to protect the Defendant who could assist in the P project in the future, Y is highly likely to seek delivery of money and valuables to the Defendant. Moreover, after the Prosecutor’s search and seizure of the P Office on May 28, 2014, Y listened to the contents that “the Defendant’s personal correspondence from X,” and the prosecutor tried not to make a statement about the fact of offering money and valuables against the Defendant.

(4) However, in light of the fact that it is difficult to deny the fact that the Defendant provided money and valuables to the Defendant, the explanation on the reversal of the Defendant’s statement that the Defendant stated the fact that the Defendant provided money and valuables was given due to the circumstances in which it was difficult to deny the fact of the Defendant’s provision of money and valuables in the process of the investigation by the Railroad Facility AB, which had been investigated by the Defendant on the suspicion of receiving a bribe, and committed suicide and the investigation by the Defendant during the process of the investigation.

C) On April 5, 2012, credibility of the statement on the receipt of funds

① On April 11, 2012, X, as of April 201, 201, Y stated that: (a) the Defendant’s election campaign office located in AA was set aside at the front line on April 11, 2012; and (b) the Defendant was granted KRW 5 million in cash in the letter bags; (c) the said temporary holiday was set at AA; and (d) the Defendant’s statement on this part is believed in line with the entry into the Y’s business nanotechnology and the entry into the Y’s driverial card.

② On April 5, 2012 at the time of the statement on August 7, 2014, the Defendant asserted that there was no credibility of this part of the Y statement on the ground that the Defendant was a member of the Y at the lower court as to its reasons, and that it was not a hot line to the Defendant who was a candidate for a National Assembly member election at the NA’s election office before the Y’s election. The Defendant stated that there was no lack of credibility of this part of the Y statement on the ground that it was due to the fact that the Defendant was a member of the Y at the lower court, and that the Defendant

③ The Defendant asserted the credibility of the X’s statement on the ground that the Defendant’s statement on the method of delivering money at the time of giving money at the AA election campaign office does not coincide with the Y’s statement. On this day, Y was packed in cash on nine occasions except for 5, 1, 2014, and Y, and delivered it to the Defendant. On April 5, 2012, X, which was a whole seated with the Defendant and Y, has a possibility of mistake as to the method of delivering money to the Defendant, and as seen below, Y’s statement is not in accord with Y’s statement, and thus, it does not interfere with recognizing the credibility of X’s statement solely on the ground that the Defendant’s statement on the method of delivering money to the Defendant is somewhat consistent with the Y’s statement.

D) On May 1, 2014, Y’s credibility and Y’s statement on the receipt of money was made by the prosecutor’s office on August 7, 2014, 2014, on the grounds that the Defendant was unable to memory on May 1, 2014 when she stated at the prosecutor’s office that the Defendant was given money. On that day, Y’s statement was easy and was not made on ordinary holidays, and was not made on the prosecution’s office, and was not on the part of the Defendant. Thus, Y’s statement is only acceptable, and it does not interfere with recognizing the credibility of the entire Y’s statement on the grounds that the Defendant omitted the most recent statement on the provision of money and valuables at the time of the initial statement.

(e) the source of the fund and the time when the bribe was delivered, the method of payment, and credibility of the statement on the amount of the bribe;

① The Defendant asserted that the Defendant’s statement against ABC of the Railroad Facilities Corporation that provided a bribe is too abstract in terms of the method of raising funds provided to the Defendant at a specific time, the timing and place of payment, the method of payment, and the amount of payment, etc. In addition to 11 times listed in the attached list of crimes in the judgment below, the Defendant provided a meal with the Defendant several times, and that the Defendant and Y provided a meal. However, the Defendant asserted that the statement about YAC that provided a bribe depends solely on Y memory without any objective material, and that the statement about YAC that provided a bribe is not credibility in the statement.

② Y entered the entire schedule, including the date and time, along with the Defendant and X, at the work-day. Reference to the use of the corporation card in the said work-day and restaurant, stated that the Defendant was summoned to pay the amount of money on a one-time basis as well as on the basis that the time when the Defendant was paid the bonus in P at the end of the year and the time when the Defendant was paid money. The statement on the time when the said money was paid is highly reliable in support of objective data, such as the said work-day and restaurant.

③ At the AA election campaign office on April 5, 2012, Y initially puts cash in the letter plastic bag, but later, sent cash to the Defendant, who is a member of the National Assembly, in advance. On May 1, 2014, Y stated that: (a) on the day off, female employees did not work, and (b) on the day off, Y issued cash in the letter plastic bag; (c) even though X is not accurately memory for each time, Y considered that the Defendant was sealed in the light package; and (d) the credibility of the Defendant’s statement on the method of transmitting money is sufficiently recognized as follows.

④ In addition, Y paid KRW 10 million to the Defendant two times at the time indicated in No. 3 and No. 4 of the Crime List in the holding of the lower judgment, unlike usuals. However, the statement that delivered KRW 10 million to P, unlike other times, was given that there was a measure to exclude the participation of the New Railroad Corporation in an important railroad in relation to the P business, and that there was approval of the material supply source of 1 and 2 sections for the 10,000,000 won for the 1 and 2 sections of the Track Line in relation to P business. Furthermore, the statement that delivered KRW 10,000 to P

⑤ In addition, Y made a statement from the standpoint of the business entity that: (a) withdrawn in cash from a bank for background investigation expenses or personal expenses; (b) held 100-20 million won to the West of the ordinary office; and (c) delivered some of them to the Defendant; and (d) made a statement on the source of funds as such, Y’s statement is believed in light of the fact that the prosecutor’s office’s seizure of P office and the discovery of cash of 10 million won in the bookbook at the time of search.

2) Whether X statements are reliable

A) On August 12, 2014, the lower court consistently stated that “Y’s statement from April 5, 2012 to May 1, 2014, 2014, from the prosecutor’s investigation to the court of the lower court, showed that “Y was packaged in an envelope or a packing package to the Defendant” several times, and there was no case deemed to have been done first on the eating place. Although the content of an envelope or a packing was not directly viewed, the lower court determined that “Y became aware of the substance of the envelope or a packing in question before or after the delivery to the Defendant and after the delivery of the Defendant, and that “Y became aware of the amount of money that the Defendant would have expressed as KRW 5 million.” This was relatively consistent with the lower court’s reasoning that “Y’s statement was highly reliable in light of the various circumstances described by the lower court.”

B) Meanwhile, X reversed the above legal statement in the trial of the court below, and it stated that X was in advance for the preparation of the first time by communicating with the Defendant’s driver and waiting for the vehicle during which the Defendant and Y shared meals, etc., and Y did not look at the Defendant’s money. However, according to X’s mobile phone telephone calls, X’s mobile phone call is confirmed to have been made with AO, which is the Defendant’s execution cost at the same time around the time when X paid the amount of meal with a credit card, and there was no reasonable and understandable explanation as to the reasons to reverse the investigative agency and the court’s statement unfavorable to the Defendant, and the Defendant and X’s official.

In light of the world, there is no reason to harm the defendant's conspiracy, and there is no reasonable reason to join the false statement of Y, it appears that the defendant's credibility is higher in the prosecutor's office and court court's testimony unfavorable to the defendant, and the testimony that seems consistent with the defendant's argument in the trial of the court of the court of the court of the court of the court of the court of the court below. The testimony that seems consistent with the defendant's assertion in the trial of the court of the court of the court of the court of the court of the court of the court of the court of the court of the court of the first instance may not be deemed to have arisen from personal brain in regard to the situation in which the defendant was detained in court

3) In addition to the above grounds of appeal, the Defendant further asserted that the Defendant was not prosecuted until now even when Y was investigated by the prosecution on embezzlement related to the management of the company, and on the grant of bribe to public officials of the Korea Railroad Facilities Corporation ACAB and the Board of Audit and Inspection, etc., including the Defendant. The Defendant asserts that the testimony of Y in the circumstances where whether and to prosecute such suspected facts and the scope of prosecution, and the form of punishment are entrusted to the prosecutor’s disposition, shall not be guaranteed, and thus, the testimony in the open court shall be excluded from admissibility as well as testimony in the open court.

However, the issue of prosecution against a multiple suspicion of crime depends on the prosecutor’s disposition. It is difficult to view that Y is objectively in danger of making a false statement under the condition that Y is not prosecuted or under the expectation of a disposition favorable to him/her, to the extent that it is necessary to deny the admissibility of evidence of the statement in the court. The circumstances cited by the Defendant alone are insufficient to deny the admissibility of the statement in the court. The Defendant’s above assertion is inadmissible.

B. As to the assertion of misapprehension of the legal principles as to blanket crimes

1) Relevant legal principles

In general, in a case where several acts of acceptance of bribe exist, the number of the crimes of acceptance of bribe should not be always identified as a single comprehensive crime, and it should be subject to the assessment of individual and overall characteristics of each act (see, e.g., Supreme Court Decision 85Do740, Jul. 9, 1985). Therefore, in determining the number of the crimes of acceptance of bribe, it should be the most important standard to determine whether the criminal is a single criminal intent, i.e., whether a single duty is a single one, and the time closeness,

Therefore, in cases where there is an explicit solicitation in different names unrelated to one another or a consideration for other duties, it shall be deemed as a substantive concurrent crime. On the other hand, in cases where a single and continuous criminal act is committed repeatedly for a certain period and the legal benefits are the same, each crime shall be deemed as a comprehensive crime. If a single and continuous criminal act is committed repeatedly for a certain period under the same kind of crime and the legal benefits are the same, in the case of a single and continuous criminal act, the one who received the money is over a considerable period, and even if there is a considerable interval between the date of receiving the money, each crime shall be deemed as a comprehensive crime (see, e.g., Supreme Court Decision 9Do4940, Jan. 21, 2000).

2) Examining the following facts in light of the facts duly admitted and examined by the lower court in light of the aforementioned legal doctrine, the lower court’s determination is justifiable inasmuch as the Defendant’s act of receiving the bribe over 11 times constitutes a single and continuous crime and constitutes a single and continuous crime. The Defendant’s assertion on this part is without merit.

A) The Defendant asserts that: (a) whether the number Nos. 1 in the table of crime in the holding of the lower judgment constitutes a political support; and (b) whether this part of 5 million won is a 5 million won or not, it is not a bribe since it clearly constitutes a political support because it is not a bribe, such as making a statement that the bribeer would have contributed to an election campaign immediately before the election

On December 30, 201 and February 7, 2012, after the introduction of X, Y explained and arranged the problems of le-day contracting devices supplied by S to the Defendant. On February 2012, 2012, Y tried to help X, an adviser, sent to AC by phone to the Korea Railroad Facilities Corporation AB, and attempted to reach AC. In addition, as at the time, the preliminary investigation and the actual audit for audit of the actual status of KTX operation and safety management of the Board of Audit and Inspection are finished, it seems that there was a need for solicitation to AB of the Korea Railroad Facilities Corporation in order to faithfully reflect the results of the audit if the results of the audit were notified to the Korea Railroad Facilities Corporation. For this reason, Y, even if there was no reason to view that Y issued a bribe to the Defendant on April 5, 2012, the Defendant’s political support payment period constitutes a total of KRW 500,000,000.

B) Whether the parts as set forth in Nos. 2 through 5 and 6 through 8 in the crime sight table as set forth in the holding of the court below were carried out by a separate criminal intent

The defendant asserts that the part mentioned in Nos. 2 through 5 of the crime sight table in the holding of the court below is that Y received a bribe in relation to the conclusion of the supply contract in the process of requesting Y to be allowed to enter into the supply contract, and that the part mentioned in Nos. 6 through 8 is a good check of the suspicions raised against P separately from the supply contract, and the contents of the solicitation are different in itself, and there is an interval of six months between No. 5 and No. 6, and there is a difference between the amount and the amount, so the criminal intent is not single and continuous.

According to the evidence duly admitted and examined by the court below, Y continued to provide a bribe to the defendant under the pretext of assistance in the related work, such as the case of exclusion from participation in SP and conclusion of delivery contracts even after P entered into a supply contract of T-speed railer between November 201 and January 2013 with U, etc., Y continued to provide a bribe to the defendant. The act of offering bribe Nos. 2 through 5 in the crime sight table Nos. 6 through 8 in the court below's holding that all of the acts of offering bribe Nos. 6 through 8 in the crime log Nos. 8 in the crime log Nos. 2 through 5 in the judgment of the court below constitutes the act of aiding delivery or arranging delivery of P in order to resolve matters that interfere with delivery at P's request, and each act constitutes a crime of offering a bribe under a specific name or impliedly different purpose even if there is no specific consignment between each act and each act, and Y also constitutes a single act of offering a bribe to the defendant as a whole.

C) Regarding the part as indicated in Nos. 9 through 11 of the crime sight table as indicated in the holding of the court below

In addition, the Defendant asserts that the part of the above list Nos. 9 through 11 in the above list of crimes is not guilty after AC was released from AB of the Railroad Corporation, or that this part of the facts constituting the crime is not guilty or after AB was taken by a successor, and the object of mediation is changed. As such, since the other party to the referral of bribery was changed in the referral of bribery, it cannot be said that the intention of

Article 132 of the Criminal Act provides and receives a bribe in connection with the referral of matters belonging to the duties of another public official, as an act of accepting a bribe under the pretext of arranging matters belonging to the duties of another public official, and even if a public official performing such duties is replaced and arranging his/her successor, it cannot be deemed that the uniformity of the offense is severed, and it does not necessarily require that the content of the other public official who is the other party to the referral or his/her duties should be specified in detail (see Supreme Court Decision 2014Do1324, May 29, 2014). As long as the defendant receives money and valuables under the pretext of assisting the P-related duties by exercising influence on the AB and the Ministry of Land, Infrastructure and Transport Loan, etc. of the Railroad Facilities Corporation, even if a change in AB of the Railroad Facilities Corporation, it shall be deemed that the acceptance of the bribe was repeated under the criminal intent of the preceding and continuous criminal

C. As to the assertion of misapprehension of the legal principles as to the crime of violation of the Act on the Aggravated Punishment, etc. of Specific Crimes, the selection of the statutory penalty for the crime shall not be readily concluded that it violates the Constitution, unless it clearly violates the principle of equality and the principle of proportionality under the Constitution, such as the nature of the crime and the protection of legal interests and our history and culture, the current situation at the time of legislation, the general sense of values or legal sentiment of the people, and the criminal policy aspects for the prevention of crimes. Therefore, given that the statutory penalty for a certain crime is too harsh compared to the nature of the crime and the responsibility of the actor for the crime, it shall not be readily concluded that it violates the Constitution, unless it is clearly contrary to the principle of equality under the Constitution and the principle of proportionality.

In particular, the crime of bribery is the legal interest protected by the law of fairness of the state's function and the non-purchase of public office, and it cannot be deemed that the size or responsibility of illegal acts is small at any time compared to the case where a bribe is demanded or promised to accept a bribe in reality. In addition, if a bribe is demanded, promised, received more than KRW 100 million as a bribe, it cannot be deemed unfair to punish the same person without asking the existence of an illegal act resulting from the bribe (see Constitutional Court Order 2011Hun-Ba364, Aug. 29, 2013). Thus, the above argument by the defendant is without merit.

D. As to the assertion of unreasonable sentencing

The Defendant is an incumbent member of the 4 line of duty of integrity under the Constitution, which requires much more strict integrity than that of the general public, and the Defendant’s criminal liability of receiving 65 million won (65 million won) from the supplier of the high-speed rail construction machinery for two years and one month in the name of the Korea Rail Network Authority AB, an affiliated agency, using the status of the member of the National Assembly who worked as K as a member, is very heavy. Furthermore, the Defendant also assisted in P’s business by means of several times with the Korea Rail Network Authority, which is an affiliated agency of the National Assembly, or presenting opinions to the Vice Minister of Land, Infrastructure and Transport.

However, even considering the circumstances favorable to the defendant, such as the fact that the defendant seems to have lived in a relatively sincere manner in the poor home and that he was elected as a member of the National Assembly and appears to have received a high support from local residents due to exemplary parliamentary activities, and that the defendant did not actively demand a bribe, the sentence of the court below, which sentenced to the lower court, is too unreasonable.

The above argument by the defendant is without merit.

3. Conclusion

Therefore, the defendant's appeal is without merit, and it is dismissed in accordance with Article 364 (4) of the Criminal Procedure Act. It is so decided as per Disposition.

The presiding judge and the lowest judge;

Judges fixed-term machines

Judges or Mine Bureau

1) The basic area of category 4 (5 to 7 years) is the case where a bribe of at least 50 million won is received, but less than 100 million won, on the sentencing guidelines.