(영문) 서울고등법원 2014.1.23.선고 2013노691 판결

Where the above fine is not paid, the defendant shall be confined in the workhouse for the period calculated by converting the amount of one million won into one day.

However, the execution of the above imprisonment shall be suspended for two years from the date this judgment became final and conclusive. 7 million won shall be collected from the defendant.

Reasons

1. Summary of grounds for appeal;

A. Defendant

(i) mistake of facts concerning the amount of the received money;

The lower court convicted the Defendant of the charge that he received a bribe of KRW 20 million in total from G on four occasions, but the statement made by the bribe offerer G is not consistent and credibility. Nevertheless, the lower court found the Defendant guilty of this part of the facts charged. In so doing, the lower court erred by misapprehending the facts. The summary of the grounds for appeal is as follows.

A) around July 5, 2010 KRW 5 million

The defendant only received 3 million won from G as a congratulatory money for the father-general of the L Coast Guard, and there is no fact that he received 5 million won.

B) KRW 5 million around July 9, 2010

On July 9, 2010, the Defendant received 1 million won from G under the name of the Defendant’s married congratulations for marriage from G on the pretext of his/her husband’s marriage, and there is no fact that he/she received five million won.

C) KRW 5 million around October 13, 2010

On October 13, 2010, the Defendant received 3 million won under the pretext of the value of rice rice welland, from G on October 13, 2010, and did not receive 5 million won.

D) around November 9, 2010 KRW 5 million

Since there is no fact that the Defendant met G in November 9, 2010, there is no fact that the Defendant received five million won from G.

2) misunderstanding of facts about job relationship and misunderstanding of legal principles

The Defendant’s receipt of a total of seven million won from G was derived from personal-friendly relations, as the name of the lower police station’s assistant congratulatory money, Defendant’s marriage congratulatory money, and the value of the rice base, etc., and the Defendant’s work is not entirely related to the Defendant’s work, as it is entirely irrelevant to the lease of the site for the establishment of a restaurant, regardless of whether the Plaintiff is a restaurant for employees at the construction site (so-called a “so-called restaurant,” a “so-called restaurant for convenience of understanding below,” and as such, there is no relation with the Defendant’s work.

Nevertheless, the court below judged that the defendant's duties are related to the defendant's duties. The court below erred by misunderstanding the facts and misunderstanding the legal principles on business relationship.

3) Unreasonable sentencing

Considering various circumstances such as the fact that the defendant has received a commendation of a police officer several times for about 30 years in a unconstitutional manner, the sentence imposed by the court below (one year of imprisonment and a fine of 40 million won, and a surcharge of 20 million won) is too indefinite.

(b) Prosecutors;

(1) misunderstanding of facts

Of the facts charged in the instant case, the lower court determined that there was no proof of a crime regarding the acceptance of bribe of KRW 20 million on September 8, 2010 among the facts charged, but, based on G’s consistent statement, Q’s statement and other evidence, the lower court found the Defendant guilty of this part of the facts charged sufficiently.

Nevertheless, the court below erred by misapprehending the facts.

2) Unreasonable sentencing

The sentence imposed by the court below on the defendant is too uneasible and unfair.

2. Judgment on the assertion of mistake of facts by the defendant and prosecutor

(a) Issues concerning the amount received;

1) G’s statementG stated that the Defendant paid the Defendant the amount of KRW 5 million on July 5, 2010, KRW 5 million on July 9, 2010, KRW 5 million on July 9, 2010, KRW 20 million on September 8, 2010, KRW 5 million on October 13, 2010, KRW 5 million on May 9, 2010, KRW 5 million on May 9, 2010, KRW 5 million on the construction site in the L police station, such as zero and P base, to demand that the persons related to construction exercise influence.

2) Defendant’s assertion

On the other hand, the defendant argued that G received KRW 3 million in July 5, 2010, KRW 1 million in July 9, 2010, KRW 3 million in total, and KRW 7 million in October 13, 2010, and KRW 7 million in total from G, but he did not receive KRW 20 million in September 8, 2010, and KRW 5 million in total from November 9, 2010.

3) Issues

A) In a case where the issue is whether to accept money or valuables, the Defendant’s statement that was designated as the recipient of money or valuables denies the fact of receiving money or valuables, and where there is no objective evidence, such as financial data to support this, in order to acknowledge the Defendant guilty, the said person’s statement should have admissibility of evidence, as well as credibility excluding a reasonable doubt. In determining credibility, it is also necessary to examine not only the rationality, objective reasonableness, and consistency in the contents of the statement itself, but also its human nature, and the existence of interests derived from the statement (see Supreme Court Decision 2010Do1487, Apr. 28, 201).

B) Ultimately, since the two arguments are different on the amount of money exchanged between the Defendant and G in this case, the issue of this case is how reliable is consistent with the objective evidentiary materials. In particular, G made a statement that the public official, etc. paid a bribe for the purpose of soliciting the operation of the restaurant in several criminal cases other than the instant case, but part of its statement was rejected for lack of credibility and was pronounced not guilty, it is necessary to closely examine whether G’s statement that seems consistent with the facts charged is credibility.

(b) A summary of the amount received;

The following table is attached to the date and time recognized by the trial court and the court below comprehensively based on the evidence duly admitted, if the communications details between the defendant and G, the details of G financial transactions (in-house cash withdrawal), and the amount of money claimed by the defendant and G, etc. on the date and time stated in the facts charged in this case.

A person shall be appointed.

We examine the following facts in detail: 5 million won on July 5, 2010.

1) The judgment of the court below

The lower court found the Defendant guilty of this part of the facts charged on the ground that G’s statements and prosecutor’s statements in the lower court court’s court’s court in G, whose amount of money distributed by G on July 5, 2010 to the Defendant KRW 5 million, were credibility in light of financial transaction details and communications details.

2) The judgment of this Court

However, the above fact-finding and determination by the court below are not acceptable for the following reasons. Ultimately, G’s statement exceeding KRW 3 million recognized as having been received from G is difficult to believe.

A) At the time of the first prosecutor’s statement, G stated that the Defendant, during the period from July 201 to November 201, up to approximately KRW 5 million each time between July 2010 and KRW 40 million (Evidence 115 pages), G, in the court of original instance, stated that “I am 1 million because I am am am am am am am am am her part of an envelope (Evidence 114 pages of the public trial record) and she am her am her at the same time, while I am her am her at the time of the first prosecutor’s statement (Evidence 114 pages of the public trial record).”

B) However, G stated in the trial court that “5 million won was 500,000 won as above, not 500,000 won, but 500,000 won was included in a bag with 50,000 won.”

C) As seen earlier, G withdrawn the sum of KRW 14:36 to 14:39 on July 5, 2010, KRW 2.4 million on around 14:48,00,000 from the point of view that agricultural cooperatives nearby the BA police station, and withdrawn KRW 16:45 to 16:47 on around 16:47, KRW 20,000 from the post office near the LA police station, KRW 20,000 on KRW 16:45 to 16:47, and KRW 200 on KRW 10,00.

D) However, it is not easy for G to put more than 100 letter bags into a letter bag generally. If G puts KRW 5 million in a letter bag, 10,000 won, KRW 200,000 won, KRW 50,000, and KRW 260,000 in a letter bag, it is difficult to put in a single letter bag and at least 3 copies in a single letter bag. This seems to have been distributed to the Defendant. This is inconsistent with the previous argument. G puts KRW 50,00 in a single bag and KRW 5,00,000 in a total of KRW 5,00 in a single part.

E) G statements from the trial court to the original trial court that, unlike a consistent statement that “50,00 won was paid in 50 million won each with 50,000 won from the prosecution to the court of the original trial, the Defendant was mixed with 10,000 won and 50,000 won if the lack of KRW 50,000 won exists.” However, G even has a little distance from the L police station other than the AZ post office near the police station on the same day, and rather withdrawn money from the LAY branch, etc. located in the BA police station, which is adjacent to the BA police station, to find KRW 50,00 at a local bank due to the shortage of cash at the local bank, it is difficult to believe that the Defendant made a statement different from all other statements that are stated in the BA police station, and thus, it is difficult to understand that the Defendant’s right to reply to the objective fact-finding by mixing it with the first instance court’s right to reply to a bribe with 50,0000,000 won.

f) G is in accordance with the prescribed handling set by G in making a request relating to the operation of a brin restaurant.

Considering the social position and field situation, the Commissioner of the Korean National Police Agency, the head of the local police agency, the head of the local police agency, and the chief of the police station, have paid KRW 5 million to the defendant, who is the chief of the police station, KRW 5 million. In addition, in this case, the reason why G paid KRW 5 million to the defendant, who is the chief of the police station, was about 0-site situation, was about 5 million, and 5 million was about 5 million, because only the defendant was sufficiently able to assist the defendant (the trial record 136 pages) and the trial court stated to the same effect.

G) However, as seen earlier, in light of the fact that the pistols and purchases of cash withdrawn by G in order to give a defendant a single letter envelope of KRW 50,000 are inconsistent with the previous statements of G, the statement that G gave 5,000 won to the defendant on that day. Moreover, in addition, in light of the fact that the amount withdrawn by the AZ post office in the vicinity of the L police station is 20,000 won, and 10,000 won, and 200,00 won, which cannot be entered into a single letter bag, there is a lack of credibility in the assumption that G gave 3,00,000 won, which was withdrawn by the post office in the AZ, to the defendant.

H) Recognizing that G made a call with BB on the same day, which is the chief of BA police station, and that G made two times in 2009, a total of KRW 6 million paid KRW 3 million over the summer and B B around two hundred (the trial record 146 pages). However, at around 14:01 on July 5, 2010, G made a call with a cell phone in the name of the National Police Agency at around 42 seconds (Evidence 88 pages of evidence record). Such time is close to the point of time (14:36-14:39) where G made a telephone call with its people on the day and made a promise to have a telephone call with its people, and then made a withdrawal of cash at the nearby place, G cannot be ruled out to the person concerned entirely.

I) However, at the defense counsel’s opinion on January 14, 2014, the Defendant reversed the amount received from G on July 5, 2010 as KRW 1 million. However, in the statement of grounds of appeal, the Defendant recognized the amount received from G as KRW 3 million. This is far from the statement that Pyeongtaek paid KRW 3 million to the chief of the police station at ordinary level. Furthermore, even if G withdrawn KRW 2.48 million from the LAY branch at around 2 hours prior to the Defendant’s delivery, the Defendant released KRW 50,000,000 from the LAY branch at around 2 hours prior to the delivery of the date, and the Defendant withdrawn KRW 50,000 from the AZ post at the time immediately before the delivery of the date, it was consistent with the Defendant’s statement that KRW 58,000,000,000,0000, out of the total of KRW 58,000,00.

(j) Ultimately, there is little doubt, but it is not unreasonable for the Defendant to recognize the money received from G on July 5, 2010 as KRW 3 million, as recognized in the grounds of appeal by the Defendant.

(k) Meanwhile, as indicated in the facts charged in the instant case at the time of the third examination of the suspect, the Defendant led to the confession that he received KRW 20 million in total from G on July 5, 2010 and July 7, 9, 100,000,000 from G at the time of the third examination of the suspect. However, inasmuch as the Defendant’s testimony made at the time of the third examination of the suspect falls short of pressure, such as returning the details of the Defendant’s account to his family members including his wife and his father and attempted to summon the Defendant to his father at the time of the examination of the suspect, the Defendant denied the admissibility of confession in the original trial. However, the confession made by the Defendant at the time of the third examination of the suspect does not coincide with the various objective evidence adopted at the lower court and the trial court, and thus, G’s testimony that was lower than the Defendant’s confession statement at the time of the examination of the suspect cannot be deemed to have been admissible at the time of the third examination of the suspect.

(d) KRW 5 million on July 9, 2010.

1) The judgment of the court below

The lower court found the Defendant guilty of this part of the facts charged on the ground that G’s statements and prosecutor’s statements in the lower court court’s court’s court in G, whose amount of money distributed by G on July 9, 2010 to the Defendant KRW 5 million are credibility in light of financial transaction details and communications details.

2) The judgment of this Court

However, the above fact-finding and determination by the court below are not acceptable for the following reasons, and eventually, G’s statement exceeding one million won recognized by the defendant as receiving from G is difficult to believe.

A) As seen earlier, G and the Defendant made a call on July 9, 2010, 11:10, 11:49, 12:50, and 12:50. G withdrawn KRW 100,000 ( KRW 50,000) at AZ post office in the vicinity of the L police station at around 12:56, immediately after the Defendant and the last call was completed on the day. At around 13:23-13:24, G withdrawn KRW 200,00 ( KRW 16:20,00) at AY branch in the vicinity of the L police station located away from the L police station at around 13:23-13:24 on the same day. On the same day, G withdrawn KRW 50,500 ( KRW 1500,000) at a post office at the 16:29 again on the same day.

B) In general, G has given money by withdrawing cash at a nearby place immediately after the date of the call with the Defendant on July 9, 2010. As such, G appears to have been immediately 12:56 of that day, which is the time when G withdraws 1 million won (50,000 won) from the AZ post office on July 9, 2010. However, G appears to have been claiming that the Defendant would have paid KRW 5 million to the Defendant at the court of the original instance, while having withdrawn 1 million won in cash immediately before the maturity at the court of the original instance, G made a statement that “4 million won in cash will be accurately known (159 pages of the trial record).” In particular, G made a statement to the Defendant that 50,000 won (150 million won in cash) that was withdrawn at the post office of the 16:29 Az. on its own, and that 500,000 won in consideration of its credibility and credibility in G’s statement to the Defendant.

C) Furthermore, as recognized earlier on July 5, 2010, G testified stated that the Defendant provided KRW 3 million to the Defendant, even though having been her draft, it is difficult to understand that G again gave KRW 5 million to the Defendant. In particular, G sought 50,000 won at a Z post office in the vicinity of the L police station in the original judgment, but there was no right to KRW 50,000,000,000 to the LAY branch in the vicinity of the BA police station, around 13:23 on that day, and 13:23 on that day. However, according to the results of the fact-finding at the trial of the Party, GO’s 13:23 (159 pages of the trial record) (the fact-finding at AY branch) was clearly inconsistent with G, since all the money was found at AY branch as KRW 12,000,000, G’s own testimony was clearly inconsistent with the above credibility of G.

D) Rather, on July 9, 2010, the Defendant was paid KRW 1 million from G to his/her father under the pretext of promoting marriage. As to this, G was already at the court of the competent trial, “Defendant’s husband’s husband’s husband’s husband’s husband’s husband’s husband’s husband’s husband’s husband’s husband’s husband’s husband’s husband’s husband’s husband’s husband’s husband’s husband’s husband’s wife’s husband’s husband’s husband’s husband’s husband’s husband’s husband’s husband’s husband’s husband’s husband’s husband’s husband’s husband’s husband’s husband’s husband’s husband’s husband’s husband’s husband’s husband’s husband’s husband’s husband’s husband’s husband’s husband’s husband’s husband’s husband’s husband’s husband’s husband’s husband’s husband’s husband’s husband’s husband’s husband’s husband’s husband’s check on his receipt register, and his wife’s husband’s husband’s husband’s husband’s husband’s husband’s husband’s husband’s husband’s husband’s husband’s wife

E) In full view of these various circumstances, G’s money to the Defendant on July 9, 2010 is KRW 1.0 million (50,000 won) withdrawn from the post office of 12:56 AZ on the day (20,000 won). This is determined to have been paid to G who did not attend the Defendant’s marriage ceremony for about two months before the Defendant’s marriage.

(e) 20 million won on September 8, 2010

1) The judgment of the court below

The lower court determined that this part of the facts charged that G gave KRW 20 million to the Defendant on September 8, 2010 was insufficient to prove the following reasons.

A) It may be recognized that the land necessary for G to operate a brin restaurant was necessary. However, in light of the circumstance that G met the Defendant on October 13, 2010 and November 9, 2010, and the Defendant did not refuse to communicate, introduce, etc. with G, it is difficult to deem that G provided a large amount of KRW 20 million as a bribe at one time.

B) Furthermore, considering the circumstances in which G’s assertion is difficult to secure land due to the progress of a large-scale construction project, whether the Defendant leased the relevant money to a third party, whether he/she acts as a broker for the lease of the said land, whether it is intended to deliver the land as a solicitation to the landowner, whether it is always free of charge, and whether the use of the land is the purport of exercising or soliciting the rights of the person or legal entity entitled to free use, or whether a civil petition regarding the lease of the restaurant site, such as the facts charged, is unclear, and it is also difficult to reasonably exclude such doubt.

C) As above, G’s legal statement and investigative agency’s statement that stated KRW 20 million at a time are difficult to believe, and only some of the financial materials corresponding thereto cannot be recognized as charged for acceptance of a bribe of KRW 20 million. In addition, there is a shortage of evidence on the delivery itself, which was in the above temporary consideration, and there is no possibility to exclude any possibility, and thus, only five million won, which is the reduction fact, cannot be found guilty.

D) Although there is a possibility that the Defendant could be the same structure as the Defendant’s defense station in relation to the nature of KRW 30 million returned to G, such as G’s statement, it cannot be ruled out that there is a possibility that part of the money related to a restaurant at the construction site within the H police station at the time the Defendant was in office at the H police station or of money due to other transactions would have been returned to G, and thus, it cannot be said that the Defendant’s return to G should be recognized as a bribe in this case at least.

E) Other evidence requested by a prosecutor is insufficient to be evidence to recognize this part of 20 million won as a bribe.

2) The judgment of this Court

In light of the records, in full view of the various circumstances of the lower court’s determination as to this part, and the following circumstances, the conclusion that the lower court determined that this part of the facts charged did not constitute evidence of a crime is correct, and there was no error by misapprehending the facts as alleged in the prosecutor’s

A) At the time of the prosecutor’s first statement from July 2010 to November 201, G made a statement to the Defendant that he saw the Defendant to have 40 million won each time (Evidence No. 115 pages). At the time of September 2010 to October 2010, G changed the statement that he dried up to the Defendant by dividing the amount of KRW 20 million at the chief of L/C police station room into four bags with KRW 500,000,000,000 each time (Evidence No. 123 pages of evidence record).

B) At the court of a trial, G stated that the Defendant was placed on September 8, 2010, in the mind that he/she would be under investigation and under detention, and that he/she would be under detention for a long time, and that he/she would not have been under detention, unlike the usual book on September 8, 2010, he/she received KRW 20 million from the Defendant.

C) However, it is difficult to readily understand that G solely for the same reason that the Defendant provided a lump sum of 20 million won or more to Q. Moreover, the amount transferred by BD to Q is 45 million won. Moreover, as regards the Defendant’s use of the remaining amount of 25 million won, excluding the amount of KRW 20 million that was paid to Q, it is difficult to believe that G’s statement on this part is not memory at the original prosecutor’s office (Evidence 1:206 pages of evidence record), and that it is difficult to say that G’s statement on this part, such as memory, but it is impossible to speak, at the court of the trial.

D) In particular, G stated in the court of the first instance that it does not have to go with ordinary booms and put cash into booms, etc. However, since L also has a branch of a new bank, it is difficult to understand that Q would have been able to find it easily in cash in order to pay such large amount of money to the Defendant. However, it is difficult to understand that Q would have made Q Q to withdraw in cash the total amount of KRW 45 million from the point south of the New Bank Down Bank on September 7, 2010, which is the preceding day, from the point that Q would have been 20 million won or more, and the next L would have been placed on the following day.

E) Of course, considering the monetary content between the Defendant and G, since it is recognized that the Defendant and G have made a four-time call on September 8, 2010, on a four-time basis, the possibility that the Defendant and G have made such a call cannot be ruled out. However, the statement on the part of KRW 20 million that G had been given to the Defendant on that day cannot be ruled out. However, in light of the various circumstances recognized by the lower court, the credibility of the statement on the part of KRW 20 million, which the Defendant and G had been given on that day, falls short, and therefore, it is insufficient to recognize this part of the facts charged.

F) Meanwhile, the lower court recognized that the amount returned by the Defendant to G was KRW 30 million, but it is deemed that it was erroneous. In other words, G sent a letter to the Defendant around November 23, 201, stating that he had previously contributed to KRW 20 million, and that he borrowed KRW 20 million (round November 23, 201, 82-84), and that the Defendant paid KRW 20 million to his wife on April 4, 201 at G’s request. R stated that the Defendant received KRW 20 million in total from the Defendant at the prosecutor’s office and the lower court’s court, but it was not clear that the Defendant received KRW 30 million in advance from the Defendant on KRW 20,000,000, KRW 10,000 from the Defendant on two occasions, and that the Defendant did not receive additional money from G in light of the above fact-finding fact-finding that the Defendant did not receive more than KRW 300,000,000 from G.

(f) KRW 5 million on October 13, 2010;

1) The judgment of the court below

The lower court found the Defendant guilty of this part of the facts charged on the ground that G’s statements and prosecutor’s statements in G’s court in the lower court’s court court’s decision that the amount of money distributed by G on October 13, 2010 to the Defendant KRW 5 million have credibility in light of financial transaction details and communications details.

2) The judgment of this Court

A) At the time of the first oral statement by the prosecution, G withdrawn 3.3 million won in cash at the AZ post office around October 13, 2010, around 13:57 on the same day, and stated that at around 13:57 on the same day, G made a telephone call to the Defendant and 5 million won (Evidence 119 pages of evidence record).

B) At the time of the prosecutor’s statement three times, G stated that the Defendant sent KRW 5 million to BE at the time of the Defendant’s withdrawal at AG AH branch, among KRW 5,700,000,000, and the remainder KRW 7,000,000,000, in total, KRW 3,330,000 and KRW 1,000,000,000, which was cash withdrawn at AZ post offices at around 13:44 on the same day (Evidence 2,686).

C) However, as seen earlier, as seen in the [Attachment], G’s withdrawal from AF H branch from October 13, 2010 to 11:01 from October 13, 2010 to 11:01, KRW 50,000, KRW 100,000, and KRW 13:44 to 13:56 on the same day, and KRW 66,00,000, KRW 500,000, which was withdrawn from AF branch from G’s office is recognized. According to G’s statement, KRW 100,000, KRW 50,000, KRW 100,000, KRW 5,000, KRW 6666, and KRW 100,00,00,00 that G paid to the Defendant is a kind of 10,000, KRW 70,000, KRW 666,00 at the same time.

D) However, as determined in the preceding C.2, the chief of the police station changed his statement that he had several places to search for the original right of KRW 50,000 for the purpose of accepting a bribe, and that G, from the prosecution to the court of the court of the court below, he voluntarily made a fact-finding, he did not know that the money he found was mixed with the original right of KRW 50,000 after becoming aware of the fact that the money he found was not only KRW 50,00 but also KRW 10,000,000. Such G’s statement is not consistent and its credibility is significantly deteriorated.

E) Furthermore, as seen earlier, G gave KRW 5 million to the Defendant on the day. If we consider that G would be difficult to enter one of the instant plastic bags. In other words, if it is assumed that KRW 100,000,000, which was possessed by G at the time, is a full right of KRW 50,000,000, KRW 70,500, KRW 86,000, KRW 156, and KRW 156,000, KRW 10,000, KRW 700, KRW 86, and KRW 156,000, KRW 10,000, KRW 5,000 is difficult to enter one of the instant plastic bags, and in fact, cash is entirely withdrawn from

F) This circumstance is inconsistent with the previous statement that G found 100 copies of 50,00 won as 50,000 won and added 100 bags to the Defendant, and there is no credibility in the statement that G gave KRW 5 million to the Defendant on that day.

G) Rather, in the statement of grounds of appeal, the Defendant was paid KRW 3 million on October 13, 2010 on the ground of appeal, for which G withdrawn KRW 3,300,000 ( KRW 56,000) at a post office of AZ in the vicinity of the L police station, and around that time, telephone communications with the Defendant was made by the Defendant. Moreover, there is a difference between the statement that G generally paid KRW 3,00,000 to the chief of the police station one time and the circumstances that G would normally have been made.

H) Meanwhile, while the Defendant received KRW 3.3 million or KRW 3 million from G in the statement of grounds of appeal, it is difficult to understand that he/she received KRW 3.3 million from G under the pretext of the value of the rice welland, and it is reasonable to deem that he/she received KRW 3.3 million in the statement of grounds of appeal.

(g) KRW 5 million on November 9, 2010;

1) The judgment of the court below

The lower court found the Defendant guilty of this part of the facts charged on the ground that G’s statements and prosecutor’s statements in G’s law that the Defendant provided KRW 5 million on November 9, 2010 are reliable in light of financial transaction details and communications content.

2) The judgment of this Court

However, we cannot accept the above fact-finding and decision of the court below for the following reasons.

A) First of all, it is recognized that G withdraws 3 million won (50 million won) from the AJ branch of the National Bank AJ branch of the National Bank of Korea, which is in a way suitable for L viewing, from November 9, 2010 to 13:21, as set out in the foregoing [Attachment], from November 9, 2010.

B) However, as a general rule, G had a telephone call with the Defendant immediately before the maturity of the Defendant and had the Defendant met, there was no record of the telephone call with the Defendant at the point AJ of the National Bank on the same day (Evidence Nos. 1, 98 through 101 pages). Rather, around 16:32 on the same day, it is recognized that the Defendant had a telephone call with G during the 12 seconds (Evidence Nos. 3, 1,269 pages, 1,279 pages, 1,279 pages), but around that time, G had already been in the original place of the Defendant while leaving L (Evidence Nos. 1, 74 pages). Accordingly, it cannot be recognized that G police station had passed only the Defendant (Evidence No. 1, 74 pages).

C) On November 9, 2010, G stated at the prosecutor’s office and the lower court’s court, at the lower court, that only the information officer in charge of L viewing who was dispatched to L viewing at the time at the time, or who was affiliated with L viewing. However, according to the witness BF’s statement, he/she himself/herself was working as L viewing Information Officer under the police station at the time, and on November 9, 2010, he/she stated that there is no fact that he/she was only G. G was working as a L viewing Information Officer under the police station at the time. In the trial court, G promised to call to himself/herself, the Defendant was called as L viewing Service Dispatch Information Officer at the time of the call, and that he/she was unsatisf:32 on the same day when the Defendant was the time of phone call to G. However, in light of the fact that he/she had already left L City to Busan, it is difficult to believe the above statement.

D) Meanwhile, G made a statement that he/she used a number of calls because he/she was nominated and assigned to him/her at the time, and that he/she used a mobile phone in the name of BG at that time (Evidence 2:688 pages). However, there is no evidence supporting G’s assertion, and rather there is a fact that he/she received a phone from the Defendant at around 16:32 on the same day, and in light of the details of a large call from the Defendant to his/her mobile phone at that time, G’s above statements are entirely not reliable.

E) The prosecutor asserts that G had been 1:08 to 14:16 minutes from L’s day for about 3:10,000,000 won as indicated in the facts charged. However, in light of the general behavior in which G had a telephone call prior to a public official’s maturity and had a cash at the bank located in the government office where he/she works for the public official, and has delivered a bribe, it is difficult for G to understand that there was no scam for the Defendant on November 9, 2010. Rather, it is difficult for G to understand that there was no scambling of telephone at around 13:19 to 13:21 on the same day. Rather, G withdrawal of KRW 3 million (500,000) from the AJ branch of the national bank located in the same day and then withdrawal of it from L viewing or related departments cannot be ruled out.

F) Ultimately, the lower court’s finding the Defendant guilty of this part of the facts charged is determined to be erroneous, and the Defendant’s ground of appeal assigning this error is with merit.

3. Judgment on the misconception of facts as to the defendant's duty relationship and misapprehension of legal principles

A. The judgment of the court below

The lower court, on the following grounds, determined that the amount the Defendant received G was related to the Defendant’s duties.

1) G may also recognize the fact of having contacted or contacted diverse persons in the L area in order to have the Defendant operated a restaurant for a large-scale construction site related to theO, worker at another construction site, and human father, which is under way within the jurisdiction of the L police station where he/she is the chief of the police station, and continue to maintain and operate the restaurant.

2) The right to exclusively operate a brin restaurant on the site of construction, including the right to secure land and buildings necessary for its operation, securing food materials, securing facilities, and resolving civil petitions that interfere with its operation, and the duties of the chief of the police station having jurisdiction over the area where the brin restaurant is located may also be recognized between the construction site and the duties of the chief of the police station in which the brin restaurant is located.

3) G has come to L in Seoul to achieve the comprehensive purpose of this-related large-scale construction site, workers at other construction sites, and the operator, maintenance, and operation of a brin restaurant, which the Defendant is proceeding within the jurisdiction of the L police station in which he/she is the chief of the police station, and can recognize the fact that the Defendant was only the Defendant in such opportunity.

4) In full view of the contents of G’s business, the circumstances and timing of the Defendant’s knowledge of G, the details of contact between the Defendant and G, and the measures taken by the Defendant, etc., G may also be recognized as having requested the Defendant to “the duties” under Article 129(1) of the Criminal Act.

B. The judgment of this Court

1) Relevant legal principles

A) The duties referred to in the crime of bribery include not only the duties under the legal control but also the acts closely related to or in fact engaged in the duties. However, whether a specific act falls under the duties of a public official ought to be determined by taking into account the form and substance aspects of whether it is reasonably necessary in relation to the duties of a public official, together with the duties that the public official performed as part of a public official (see, e.g., Supreme Court Decision 2009Do2453, May 26, 2011).

B) Bribery is a legal interest directly protected to the fair performance of duties and the principle of non-purchase of duties based on social trust. As such, the crime of acceptance of bribe is established when the amount of money received from a public official’s official’s duties and money is in a quid pro quo relationship, and there is no need to consider the existence of solicitation and the quid pro quo relationship for each individual act. Whether a certain profit acquired by a public official constitutes a quid pro quo relationship with a public official should be determined by taking into account all the circumstances, such as the contents of the relevant public official’s duties, the relationship between the duty and the provider of profit, whether there exists a special relationship between the parties, whether there exists a special relationship between the parties, and the situation and time when the benefit was received, etc. In light of the fact that the crime of bribery is the legal interest protected to the fair performance of duties, trust in the society, and the non-purchase of the act of performance of duties, whether a public official is suspected of being fair in the performance of duties due to the receipt of the benefit can be the basis for determining the gender of bribery (see, e.

C) In a case where a public official received money, valuables, or other benefits from a person subject to his/her duties from the person who received such money, valuables, or other benefits, and in light of the social norms, it shall not be deemed that there is no connection with his/her duties, barring any special circumstances, such as where it is deemed that such person was merely an equivalent consideration in light of the social norms, or where it is obviously recognized that an individual relative relationship is due to the need for the doctrine. In a case where a public official received money and valuables in relation to his/her duties, even if he/she received money and valuables by lending the form of a private club, such money and valuables received shall constitute a bribe (see, e.g., Supreme Court Decisions 2013No7871, Dec. 12, 2013; 9Do4940, Jan. 21, 200).

2) Specific determination

Examining the evidence duly admitted by the court below in light of the records, although the court below erred by misunderstanding some facts, the total of seven million won recognized by the court below that the defendant was received from G and recognized by the court below was related to the defendant's duties, the above misunderstanding of facts does not affect the conclusion of the judgment in conclusion. The reasons are as follows.

A) On July 5, 2010, the Defendant asserted that KRW 3 million received from G was paid as a gold bar by the chief of L police station, and that G did not have any relation to the receipt of the right to operate a restaurant at the construction site within the L police station site or the duties related thereto.

B) However, on July 5, 2010, the Defendant was well aware of G prior to receiving KRW 3 million from G as above, and it is deemed that G was well aware of the fact that G was operating the so-called mar restaurant at the time of receiving such money. Even if the Defendant, as the Defendant’s assertion, he was appointed to the LWWS on July 2, 2010, and G gave KRW 3 million as the congratulatory money, it is reasonable to view that G was inseparably combined with the name of solicitation related to the operation of the mar in the LWS police station in the future in the future, and that it was indivisible in the name of solicitation in connection with the operation of the mar. It cannot be said that G purely provided the Defendant with KRW 3 million,000,000, in order to relieve him of taking office in LWS without any consideration.

C) Furthermore, the lower court’s witness S sent the request related to the operation of G’s box, after being detained by G, and the Defendant stated that G was introduced to S. In this regard, X acknowledged that G was only an introduction to the head of the ordering place rather than the Defendant’s introduction, but on the other hand, it recognized the fact that it visited the head of the L/C office where the Defendant was working and met the Defendant (the trial record 636-637 pages, 652 pages).

D) Even if there is no direct business relationship with the owner or operation of a 0-related large-scale construction site or a brin restaurant for workers in another construction site under the jurisdiction of the L police station at the time, such construction works may lead to multiple civil petitions, such as the demonstration or assembly of neighboring local residents, or if such civil petitions have occurred, and the head of the competent police station has the duty to resolve them in the event that such civil petitions have occurred. Therefore, the court below’s determination that the Defendant has a business relationship with the money received from G is justified, and there is no error by misapprehending the legal principles or by misapprehending the legal principles.

E) The Defendant asserts that one million won received from G on July 9, 2010 is the gold title of the marriage axis of Defendant’s father and wife, and thus there is no relevance to duties.

However, even if the Defendant received KRW 1 million from G as the Defendant’s assertion, in light of the ordinary relationship between the Defendant and G, it is determined that G was well aware of the circumstances that the Defendant was sailing L to operate the brin restaurant as seen above. Moreover, in light of the ordinary relationship between the Defendant and G, it is determined that even if the Defendant was in the ordinary relationship between the Defendant and G, the amount of KRW 1 million received from G is considered to be generally considered to be the scope of a private case. Examining these various circumstances in light of the legal principles as seen earlier, this is also deemed to have been combined with the nature of the stable and the nature of the bribe. Accordingly, the Defendant’s assertion on this part is not acceptable, since the part of the KRW 1 million was related to the Defendant’s duties.

F) On October 13, 2010, the Defendant asserted that it is not related to the Defendant’s duties, since he merely received KRW 3 million under the pretext of the value of the rice base rice base (Seoul) from G.

However, since it is apparent that the prosecution in 2010 is from September 21, 2010 to September 23, 2010, the defendant's assertion that he was paid KRW 3 million from G under the pretext of the value of the rice base in the tin. Of course, even if the defendant received KRW 3 million from G after the tin as the defendant's assertion, it is difficult to deny the defendant's occupational relationship as seen above, even if the defendant received KRW 3 million under the said pretext. Therefore, the defendant's assertion on this part cannot be accepted.

4. Conclusion

Therefore, the judgment of the court below is reversed without examining the grounds for appeal as to unfair sentencing by the defendant and prosecutor, and the judgment of the court below (including the portion not guilty of the grounds for appeal) is reversed, and it is again decided as follows through pleading.

Criminal facts

On July 5, 2010, the Defendant received a bribe of KRW 7 million in total for the same purpose as on July 9, 2010, from G, which is a restaurant operator at the construction site, to receive and continue to maintain and operate a restaurant at the construction site in the construction site within the jurisdiction of the L police station, such as “the request to resolve a civil petition by local residents and construction companies,” and received a bribe of KRW 1 million in cash for the same purpose as on July 9, 2010.

Summary of Evidence

The summary of the evidence to be cited by this Court is the same as that of the judgment 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 129(1) of the Criminal Act (generally, the choice of imprisonment)

1. Imposition of fines concurrently;

Article 2(2) of the Act on the Aggravated Punishment, etc. of Specific Crimes

1. Invitation of a workhouse;

Articles 70 and 69(2) of the Criminal Act

1. Suspension of execution;

Article 62(1) and (2) of the Criminal Act (see the following reasons for sentencing):

1. Additional collection:

Article 134 of the Criminal Act

The acquittal portion

1. The summary of the facts charged on July 5, 2010 is that the Defendant received a bribe of five million won under the pretext of solicitation to resolve the civil complaints of local residents and construction companies in order to grant the right to operate a restaurant at the construction site in this holding from G on July 5, 2010.

As seen earlier, as to the part exceeding KRW 3 million from G on the same day, since there is no proof of a crime, it should be pronounced not guilty pursuant to the latter part of Article 325 of the Criminal Procedure Act, but it should not be declared not guilty separately from the part of the crime recognized as guilty.

2. The summary of the facts charged on July 9, 2010 is that the Defendant received a bribe of 5 million won under the pretext of solicitation to resolve the civil complaints of local residents and construction companies in order to receive the right to operate a restaurant in the construction site from G on July 9, 2010.

As seen earlier, as to the part exceeding one million won from G on the same day, since there is no proof of a crime, it should be pronounced not guilty pursuant to the latter part of Article 325 of the Criminal Procedure Act, but it is part of the crime recognized as guilty, and it does not make a decision of not guilty separately from the disposition.

3. On September 8, 2010, the summary of the facts charged is that the Defendant received a bribe of KRW 20 million under the pretext of solicitation to resolve civil petitions on the construction site of LH Corporation so that the Defendant could rent a restaurant site in the construction site from G on September 8, 2010.

However, this constitutes a case where there is no proof of a crime as seen earlier, and thus, a not-guilty verdict should be rendered pursuant to the latter part of Article 325 of the Criminal Procedure Act. However, as long as the court found the defendant guilty of the crime of acceptance of bribe with respect to a single comprehensive crime,

4. The summary of the facts charged on October 13, 2010 is that the Defendant received a bribe of five million won on the pretext of solicitation to resolve civil petitions filed by local residents and construction companies in order to grant the right to operate a restaurant at the construction site held from G on October 13, 2010.

5. The summary of the charge on the part of KRW 5 million on November 9, 2010 is that the Defendant received a bribe of KRW 5 million on the pretext of solicitation to resolve civil petitions filed by local residents and construction companies in order to receive the right to operate a restaurant in the construction site from G on November 9, 2010.

However, as seen earlier, since this constitutes a time when there is no proof of a crime, it should be pronounced not guilty pursuant to the latter part of Article 325 of the Criminal Procedure Act. However, as long as it is found guilty of the crime of acceptance of bribe in relation to the crime of universal offense, the judgment of

The reason for sentencing is that the Defendant, as the chief of an incumbent police station, was aware of the reason why G, who is the operator of the restaurant, was well aware of the Defendant’s access to the said money, is highly criticized in that he/she received such money in his/her office. The fact that the chief of a police station, who is a senior public official of the police, received money from a business operator in his/her office, as such, is seriously lusent, is likely to have an adverse impact on the public trust of the police officer, and that the honor of the entire police officer is deflusent. In light of the fact that the honor of the entire police officer, the criminal liability that the Defendant is to be responsible for committing the instant crime

However, the defendant did not actively demand a bribe to G in advance, and the amount is not relatively large, and the defendant did not present the fact that the defendant knew about the bribe after receiving the bribe from G.

In 1982, the Defendant had served in good faith for about 30 years after he was administered to the police for the 30th anniversary of the police officer candidate. As a result, it is necessary to consider that the Defendant was sentenced to a punishment for the Defendant. Moreover, from January 1, 1989 to 2012, the Defendant had shown good example of engaging in donation activities as a social guidance floor, such as (i) paying periodically support payments to the Children Foundation (i.e., (ii) the Foundation for the Maintenance of Symnacium and (iii) the Foundation for the Maintenance of Symnacium from January 2012, and (iv) paying periodically support payments to the Children Foundation (i.e., the Foundation for the Maintenance of Symnacsan), the Defendant’s age, character and conduct, circumstances after the crime, family relations, etc.

Judges

The presiding judge, appointed judge

Judges Dok-woo

For the purpose of judge sex impulse

Note tin

1) The Defendant asserted that he received KRW 3 million from G on July 5, 2010 as a congratulatory money for the chief of the police station’s assistant appointment, in the grounds of appeal.

On January 14, 2014, the defense counsel's written opinion reversed the argument that 1 million won was received from G on that day, but the claim is also reversed.

The same shall apply to the examination based on the arguments in the reasons for the action.

2) In the statement of grounds of appeal, the Defendant asserted that the amount received from G on October 13, 2010, and KRW 3.3 million, or KRW 3 million, among them.

A. On January 14, 2014, the defendant asserted that 3 million won was received from his defense counsel’s written opinion, and thus, on that day, the defendant was received from G.

The amount of money alleged to be raised shall be three million won.

3) Supreme Court Decision 20111Do845 Decided December 12, 2011; Supreme Court Decision 2012Do845 Decided May 9, 2012; Supreme Court Decision 201Do845 Decided June 14, 2012

Supreme Court Decision 2012Do2286 Decided June 28, 2012; Supreme Court Decision 2012Do4169 Decided October 25, 2012;

Supreme Court Decision 201257316 Decided November 15, 2012

심급 사건

-서울동부지방법원 2013.2.1.선고 2012고합338

서울고등법원 2014.1.23.선고 2013노691

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