(영문) 서울고등법원 2005. 9. 2. 선고 2005노970 판결

6. Of the facts charged of this case, each of the facts charged of bribery on October 10, 2002 and July 2, 2003 and the facts charged of violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (Bribery) on July 7, 2003 are acquitted.

7. The appeal by the prosecutor against the acquittal shall be dismissed; and

Reasons

1. Summary of grounds for appeal;

A. Defendant

(1) misunderstanding of facts or misapprehension of legal principles

In the case of Nos. 2, 3, 4, 6, 8, and 9 of the List of Crimes (3) attached to the judgment of the court below, the defendant received money as stated in the judgment of the court below. However, although the defendant entered into a contract by the method of lowering the contract amount compared to the amount stated in the estimate of supply of government-funded materials or private contract for construction work, the defendant was paid the amount returned to the business operator and returned it, and the court below did not acquire unjust profits as a result of his duties, but the court below erred by misapprehending the facts or misapprehending the legal principles, and even if the defendant was either recruited to receive KRW 10 million from non-indicted 1 in advance or was not distributed the money after receiving KRW 10 million from non-indicted 1, the court below erred in finding that the defendant received the above money as a bribe.

(2) Unreasonable sentencing

In light of the various sentencing conditions of this case, the sentence imposed by the court below is too unreasonable.

(b) Prosecutors;

The Defendant stated that a business operator who supplied construction and goods by a research institute (title omitted) research institute (hereinafter “research institute”) in which the Defendant serves as an expenditure officer (hereinafter “research institute”) pays money to the Defendant for the purpose of rebates in connection with the construction and supply of goods. Although it is difficult to say that the bribe depends on the ratio of the amount of bribery and the construction amount, etc., the lower court erred by misapprehending the facts or misapprehending the legal doctrine, thereby making it difficult to determine the bribe depending on the ratio of the amount of bribery and the construction amount. However, the lower court acquitted each of the facts charged on the following grounds: (a) there is a high ratio between the amount received by the Defendant and the amount of bribery received on July 23, 2002 and each violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (Bribery)

2. Determination

A. As to the appeal by the defendant

(1) Fact-finding or misunderstanding of legal principles

(A) Determination criteria

While recognizing the fact that the amount of money in subparagraph 2, 3, 4, 6, 8, and 9 of the crime list (3) as indicated in the judgment of the court below is received from the construction business operator or the goods supplier in connection with his duties, the defendant asserts that the above amount is not a bribe in connection with his duties, but a certain amount of money is paid more than the appropriate contract price and embezzled by means of returning it. In the case of money and valuables in subparagraph 10 of the above crime list, the defendant stated that the representative director of the non-indicted 3 corporation should deliver it to the non-indicted 2. The defendant did not receive it as a bribe. The defendant stated that the amount of money in this case that the defendant or non-indicted 2 received from the construction business operator is not a bribe in relation to his duties; whether the amount of money in this case should be determined by the contract at the maximum rate of the cost and the cost of the construction project to be received by the construction business operator, at the time and at the reasonable rate determined by the Enforcement Rule of the Act; whether it should be deemed as embezzlement the amount of the construction work price per se.

(B) The point of acceptance of bribe

1) Two th (2) of the list of crimes (3) as indicated in the holding of the court below [the part of the receipt of KRW 500,00 from Nonindicted 4, which was developed on March 15, 202 (mutual omission)]

On March 15, 2002, the Defendant stated that, within the research institute on March 15, 2002, the Defendant used the said money for overseas travel of Nonindicted 2,50,000 won from Nonindicted 4 with respect to cleaning services, which was awarded to Nonindicted 4,500,00 won for the purpose of cutting down trees within the research institute. The Defendant stated that the Defendant did not receive the said money in advance from the police and the prosecutor’s office, but received the said money as a consideration for the research institute’s services. However, even if the Defendant’s statement and the contents of the contract are not necessary for basic facilities or materials, it appears that there is considerable room to regulate the profits of the Defendant to use the said money as a bribe in the future, and that it is reasonable to consider that the Defendant already received money from Nonindicted 4 as one of the above 50,000 won of the contract amount, and that it did not constitute a bribe by taking account of the following circumstances: (a) the Defendant’s statement and the content of the contract, and that it would not constitute a bribe.

Therefore, the judgment of the court below on this part is just and there is no reason to believe that there is an error of mistake or misunderstanding of legal principles.

2) From Non-Indicted 5 of the list of crimes (mutual 1 omitted) Nos. 3 and 4 (mutual 1 omitted) in the holding of the court below to receive KRW 1 million in the middle of April 2002, and KRW 500,000 from May 2 of the same year)

The case holding that on April 2, 2002, the defendant stated that the defendant received approximately KRW 20 million from Nonindicted 5 to Nonindicted 5, and stated that he received approximately KRW 1 million from KRW 3 out of the crime sight table (3) in the judgment of the court below, and that he received approximately KRW 5 million from Nonindicted 5,00,000 among the above crime sight table (3), and that he received KRW 5,000,000 from Nonindicted 5 on May 2, 2005, and that he received KRW 4,00 from KRW 4,00 out of the above crime sight table, and that he also stated that he received KRW 422 and 423 of the investigation record, and that the above money was customarily received from the police and the prosecutor, and that the defendant paid the above money at the expense of the police, as alleged in the above facts, the defendant did not have any influence on the defendant's establishment of the crime of acceptance of bribe under the pretext of the above contract and its profits.

Therefore, the judgment of the court below on this part is just and there is no reason to believe that there is an error of mistake or misunderstanding of legal principles.

3) No. 6 of the list of crimes (3) as indicated in the holding of the court below [5 million won from non-indicted 6 of October 10, 2002 (mutual 2 omitted)]

A) Summary of the facts charged and the indictment of the defendant

The summary of the facts charged in this case as to six times of the crime sight table (3) in the holding of the court below is that the defendant, in collusion with Nonindicted 2, the president of the research institute, and Nonindicted 7, who is the researcher, received five million won or more as office expenses in relation to the supply of equipment for testing and research within the research institute on October 10, 2002, and received a bribe in relation to his duties from Nonindicted 6 in relation to the supply of equipment for testing and research within the research institute on October 10, 2002. The defendant recognized the receipt of the above money at the court below and the trial, while recognizing the fact of receiving it, he embezzled the contract amount of the above five million won in a way that he received goods less than the quantity of the goods which was unfured and purchased under the direction of Nonindicted 2 by the research institute president

B)Review

The Defendant stated at the police first, that the above amount was refunded after he was overestimated the contract amount, and that it was returned, and Nonindicted 6 and Nonindicted 6 stated that the above amount was the rebates related to the supply contract from the time when he was examined to the prosecution, and Nonindicted 6 also delivered 20% of the remaining amount to the police research institute because it was difficult for the research institute to deliver the goods to the police institute, and that it was delivered to the Defendant under the pretext of allowing continuous transactions.

(4) According to evidence duly adopted and examined: (3) the Defendant entered into an investigation of Nonindicted 60/6/60/6/60/60/60/60/60/60/60/60/60/60/60/60/60/60/60/70/60/60/70/60/60/60/60/70/70/60/60/70/70/60/60/70/60/60/70/60/70/60/70/70/60/70/70/60/70/70/60/70/60/70/60/70/60/70/70/60/70/70/60/70/70/60/70/70/67/70/70/60/

As above, in order to raise the research institute's event cost, the defendant proposed to pay for the supply of goods to Nonindicted 6 with his consent, and received a written estimate containing a large amount of the price for the first time after the approval of Nonindicted 6. The amount of KRW 5 million received from Nonindicted 6 is the larger amount than KRW 16.89% of the total price for the goods. In addition, the above money is close to KRW 4,474,140, which is less than the estimate amount first submitted by Nonindicted 6. The defendant's act of delivery of all the goods to the police after receiving the goods from Nonindicted 6 and paying the price for the goods, and it is difficult for the police to find that it was difficult for the defendant to receive the above money from the public prosecutor's office after considering the fact that it was difficult for the police to receive the above money from the public prosecutor's office and that there was no other evidence that there was any error in the delivery of the goods to the public prosecutor's office and that there was no difference in the amount of the bribe.

Thus, although this part of the facts charged should be pronounced not guilty on the ground that there is no proof of crime, the court below erred by misunderstanding facts or misunderstanding legal principles, which affected the conclusion of the judgment, and therefore, this part of the defendant's assertion pointing this out has merit.

4) No. 8 of the list of crimes (3) as indicated in the holding of the court below (the point of receiving KRW 7 million from Nonindicted 9 on July 31, 2002)

The case holding that even if the police and the prosecutor accepted rebates amounting to KRW 7 million from July 31, 2002 in relation to the foundation reinforcement of the research institute's foundation around May 2 of the same year from Non-Indicted 9, in the vicinity of the inside of the city where the police and the prosecution held on July 31, 2002, as indicated in the judgment of the court below, as the crime list (3) No. 8 of the crime list of the court below, and the defendant was used as the research institute's operating expenses, and some of them were used as the research institute's operating expenses, and Non-Indicted 9 did not pay money to the defendant among the profits of the research institute's own, and it was merely a false statement that the defendant did not have any other work at the time and operated equipment on the road where the above money was delivered to the non-indicted 9's own, it is reasonable to view that the defendant's use of the above money was within the scope of 90's own money and the defendant stated that it was within 90's own money.

Therefore, the judgment of the court below on this part is just and there is no reason to believe that there is an error of mistake or misunderstanding of legal principles.

5) The number 9 and 10 of the list of crimes (3) as indicated in the judgment of the court below (the receipt of KRW 5 million from Nonindicted Co. 3 Co. 1 on July 2, 2003 and KRW 10 million on July 7, 2003)

A) Summary of the facts charged and the defendant's indictment

The summary of the facts charged in this case concerning Nos. 9 and 10 times of the crime sight table (3) as indicated in the judgment of the court below is as follows: the defendant, in collusion with Nonindicted 2, the president of the above research institute, and Nonindicted 10, the researcher, in relation to the outdoor breeding place and transportation work on July 2, 2003, in collusion with Nonindicted 3 Co. 1, a research institute, 500,000 won in relation to the temporary breeding place and transportation work on July 2, 2003, and 10,000 won in relation to the repair and repair work of the outdoor breeding place on July 7

In regard to the above five million won in the court below and the court of the trial, the defendant acknowledged the fact that he received the contract amount, paid it to the non-indicted 1, received it, and used it as the expenses of the research institute, and did not receive it as a bribe in relation to his duties. As to the above ten million won as to the research institute, the non-indicted 2, the president of the research institute, received it from the non-indicted 1, and the defendant did not receive it.

B) recognized facts

According to the evidence duly adopted and examined by the court below, the defendant entered the above non-indicted 3 corporation 1 and the above non-indicted 1 corporation's account opened in the non-indicted 700 won, and entered the contract with the non-indicted 1 corporation 70 million won to open the above non-indicted 3 corporation's office's account with the non-indicted 10 million won, and entered the non-indicted 1 corporation's office's account with the non-indicted 70 million won and deposited the above non-indicted 1 corporation's office's account with the non-indicted 10 million won for the non-indicted 3 corporation's account opened in the non-indicted 1 corporation's account with the non-indicted 70 million won and the non-indicted 1 corporation's office's account opened in the non-indicted 1 corporation's account with the non-indicted 3 corporation's non-indicted 70 million won and deposited the above non-indicted 1 corporation's account with the non-indicted 1 corporation's account opened in the above 7000 million won.

C) Statement of interested parties

The Defendant, at the police and prosecutorial office, offered to Nonindicted Party 1, instead of offering money to Nonindicted Party 1, Nonindicted Party 2 and Nonindicted Party 10, and offered to Nonindicted Party 1, 200,000 won for a total of KRW 27,504,00 from March 27 to April 15, 200, and provided to Nonindicted Party 1, 7,000,000 to Nonindicted Party 2, 1,000,000,000,000 KRW 70,000,000,000,000,000 KRW 70,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,00,000).

D) Review

살피건대, ① 앞서 본 바와 같이 2003. 3. 27.부터 같은 해 4. 15.경까지 총공사금액 27,504,000원의 야외사육지 객토 및 경운공사에 대한 리베이트로 500만 원을 받았고, 같은 달 23.부터 7. 1.경까지 사이에 7,000만 원 상당의 야외사육지 개보수공사에 대한 리베이트로 1,000만 원을 연구소장 공소외 2에게 가져다주게 하였다는 피고인의 경찰 및 검찰 진술이나 2003. 4. 말 경 피고인으로부터 “7,000만 원짜리 공사가 있는데 바쁘니까 빨리 계약하여 공사를 하자, 공사를 하면 얼마 정도 남느냐”는 물음을 받고 “1,500만 원 정도 남으니까 건네도록 하겠습니다”고 대답하는 등으로 공사계약 체결 이전에 이미 1,500만 원을 지급하기로 피고인과 약정한 후 견적서를 제출하여 2003. 4. 23.경부터 같은 해 7. 1.경까지 연구소 야외사육지 개보수 공사 계약을 체결하여 이를 완료하고 이 사건 현금 500만 원을 피고인에게, 나머지 1,000만 원을 연구소장 공소외 2에게 각 교부하였다는 공소외 1의 경찰진술 등을 종합하면 피고인은 공소외 1과 위 야외사육지 객토 및 경운공사와 야외사육지 개보수 공사계약을 체결하기 이전에 연구소에서 공소외 1에게 지급할 수 있는 돈을 7,000만 원으로 미리 예정하여 고지하면서 그 중 일부인 1,500만 원을 감액한 금 5,500만 원을 공소외 1이 취득할 수 있는 적정 공사금액으로 하여 공소외 1이 공사완료 후 위 공사금액 7,000만 원을 지급받으면 그 중 1,500만 원을 피고인등이 되돌려 받기로 사전에 약정하였다고 보여지는 점(다만 피고인은 위 500만 원이나 1,000만 원을 위 각 공사계약에 대한 리베이트로 받았다고 진술하였으나 그에 관하여 피고인은 원심 및 당심에 이르러 자신이 수사기관에서 조사를 받으면서 위 금품을 뇌물로 수수한 것인지 아니면 횡령한 것인지에 대한 법률적 평가를 제대로 하지 못하였기 때문에 그렇게 진술한 것이라고 변소하고 있는바, 이 사건 기록상 피고인이 2004. 11. 11. 긴급체포되어 구속되었고, 피고인에 대한 경찰의 최초 피의자신문조서도 위 날 작성되었으며, 그 이후 피고인은 계속하여 구속된 상태에서 조사를 받고 있었고 검찰 수사 단계인 2004. 11. 23. 변호인을 선임하기 이전까지는 변호인의 조력을 받았다고 볼 자료가 없고, 변호인이 선임된 위 날 이후에도 이 점에 관하여 변호인으로부터 적절한 조력을 받았다고 볼 자료가 없는 점, 그리고 앞서 본 바와 같이 이 돈이 리베이트인지 부풀린 공사대금인지는 피고인의 진술을 포함하여 객관적으로 제반사정을 종합하여 밝혀지는 것이지, 전적으로 피고인의 이에 관한 진술에만 의존하는 것이 아닌 점 등에 비추어 피고인의 위 변소를 이해할 수 있다고 할 것이므로, 피고인이 위 진술에서 사용한 ‘리베이트’라는 용어 자체에 구애되어 판단할 것은 아니라고 보여진다), ② 공소외 1이 이 사건 500만 원이나 1,000만 원을 위 두 공사를 연달아 마친 직후인 2003. 7. 2. 및 같은 달 7.에, 그리고 5일이라는 짧은 기간 동안 교부하였으며(이 점에서도 위 500만 원이 공사금액 27,504,000원인 앞부분 공사의 리베이트로 보기 어렵다), 또한 피고인으로부터 공사대금으로 7,000만 원을 공소외 3 주식회사 은행계좌로 입금 받은 다음날 위 돈 자체에서 500만 원을, 그로부터 6일쯤 후 역시 위 돈에서 1,000만 원을 그대로 각 인출하여 그 중 500만 원을 근무시간 중에 피고인의 사무실에서 피고인에게 건네주거나 1,000만 원을 피고인에게 건네주기 위해 피고인의 사무실을 방문한 점에 비추어 위 각 돈은 위 두 가지 공사의 공사대금으로 지급된 돈 그 자체 중 일부가 피고인등에게 교부된 것으로 보여지는 점, ③ 공소외 1이 피고인에게 교부한 500만 원과 연구소장 공소외 2에게 교부하였다는 1,000만 원을 합한 금 1,500만 원이 위 각 공사금액의 합계액인 97,504,000원의 약 15%(부가가치세를 공제하고 계산하면 위 비율은 17%로 더 커진다)에 이르는 다액으로서 국가를 당사자로 하는 계약에 관한 법률 시행규칙 제8조 제2항 에 의한 공사계약의 경우 최대이윤율인 15%에 의해 인정되는 이익금에 상당하는 1,500만 원 전부를 뇌물로 교부하였다고 보기도 어려운 점, ④ 특히 피고인이 위 돈 중 1,000만 원을 연구소장 공소외 2에게 가져다주라고 하였을 뿐 자신이 이를 수수하지 않은 점, ⑤ 원심 판시 범죄일람표(1)의 3번 기재와 같이 이미 피고인은 2002. 4. 27.에 연구소 야외사육지공사 및 담장보수 공사와 관련하여 허위로 지출결의서 등을 작성하여 공소외 1에게 공사대금을 입금시킨 후 3,060,000원을 반환받는 등으로 횡령한 적이 있었던 점 등에 비추어 보면, 이 사건에 있어 피고인이 국고에서 공소외 1에게 지급한 돈을 뇌물로 수수하였다고 하기보다 공소외 1과 공모하여 공사대금을 부풀리는 방법으로 국고금을 적정 공사가액보다 과다하게 지급하여 횡령한 다음 그 횡령금액중 500만 원을 공소외 1로부터 교부받은 것으로 평가하는 것이 합리적이고, 또한 나머지 1,000만 원을 연구소장인 공소외 2가 공소외 1로부터 교부받았는지 여부는 별론으로 하더라도( 공소외 2는 이 사건으로 수사 중에 있으나 그 수사는 종결되지 않고 있다. 이에 관해 피고인은 연구소 경비로 사용하기 위해 연구소장인 공소외 2 및 연구원인 공소외 10과 공모하여 공소외 1로부터 위 500만 원 및 1,000만 원을 공사대금에서 반환받기로 하였으며, 공소외 2가 공소외 1로부터 이 사건 1,000만 원을 교부받은 후 그 사실을 피고인에게 말해 주었다고 진술하고 있고, 공소외 1은 이 사건 공사 계약을 체결하기 전에 공소외 2에게 인사를 하였고, 공사대금을 지급받은 후 쇼핑백 2개에 나누어 담은 1,000만 원을 공소외 2에게 건네주었다고 진술하고 있는 반면, 공소외 2와 공소외 10은 연구소의 부족한 경비를 충당하기 위해 비정상적인 방법으로 피고인이 금원을 조달한다는 사실을 매일 아침 개최하는 회의를 통해 알고 있었고, 공사계약등 체결 시 공사업자들과 인사를 한 사실 등을 인정하면서도 위 1,000만 원을 지급받은 사실 등은 부인하고 있다.) 적어도 피고인 자신이 이를 직접 교부받았다고 볼 만한 증거가 없으므로, 결국 피고인이 위 500만 원이나 1,000만 원을 그 직무와 관련하여 뇌물로 수수하였다고 단정하기는 어렵다고 할 것이다.

In addition, in light of the above fact that it is difficult for the defendant to receive the above five million won or more as a bribe in connection with his duties, the police and prosecutor's statement of the defendant that he received rebates from the above five million won as a bribe (as seen above, the term "Liber" is deemed to have been used as a mistake due to the defendant's failure to recognize the difference between embezzlement and bribe, which is a legal evaluation term, when he was investigated in the detention condition, and only when he was investigated in the detention condition, he was used as a mistake). The above five million won and 10 million won were paid as a honorarium to the defendant, and it is hard to believe that the police statement of the non-indicted 1, who received the above five million won or more from the defendant, was delivered to the defendant first at the parking lot, and the defendant was delivered the above ten million won or more to the non-indicted 2's office at the research institute head of the research institute on the second floor of the research institute, and the defendant's statement was delivered to the non-indicted 1,000's statement.

E) Sub-decision

Ultimately, there is no evidence to prove each part of the facts charged, and thus, it should be pronounced not guilty on the ground that there is no proof of crime. However, the court below erred by misapprehending the facts or misapprehending the legal principles, thereby adversely affecting the conclusion of the judgment. Accordingly, this part of the defendant's assertion on this point is with merit.

B. As to the prosecutor’s appeal

(1) Summary of the charges on the violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (Bribery) on July 23, 2002 and on April 2, 2003 and August 23, 2002

Defendant,

(A) Around June 20, 2002, upon entering into a contract with Nonindicted 13 to purchase 22,460,000 won of government-funded materials, such as Doratan flood control materials, the Defendant received bribe in connection with the Defendant’s duties after receiving KRW 6 million from Nonindicted 13 at the parking lot for Namyang-si (hereinafter omitted) (mutually omitted), around July 23 of the same year, around July 23, 2002;

(B) On March 26, 2003, upon entering into a contract with Nonindicted 14 to purchase yellow soil necessary for outdoor raising place work with KRW 20 million, and on April 2, 2003, after receiving KRW 10 million in the research institute’s balance after deducting KRW 10 million in the yellow soil value, equipment costs, etc., from the research institute as office expenses, and accepting a bribe in connection with the Defendant’s duties;

(C) Within the Agency on August 23, 2002, Nonindicted 15 received a bribe in relation to the Defendant’s duties from Nonindicted 15 in relation to the instant Agency’s slabs and reinforcement works as a rebates, and received a bribe in relation to the Defendant’s duties.

(2) The defendant's defense and issues

Although the Defendant received money from Nonindicted 13, etc., the Defendant concluded a private contract for government-funded materials supply or construction work, concluded a contract in a way to lower the contract amount than the amount stated in the written estimate submitted by the said business entity, and received a refund of the amount paid out from the said business entity and did not receive the said money as a bribe, the prosecutor asserts that the Defendant was indicted for bribery. The issue of this part is whether the Defendant’s money received from the business entity is a bribe or merely received a refund of the amount equivalent to the amount paid out from the business entity.

(3) The judgment of the court below

(A) Criteria for determination

Since a bribe in the crime of bribery is an unjust profit in relation to his/her duties, whether the Defendant entered into a contract by means of lowering the contract amount rather than the amount stated in the written estimate submitted by the business entity or merely received a refund of the amount paid out from the business entity should be determined by comprehensively taking into account the intent of the parties who give and receive the money and the terms of the contract and the ratio of the amount paid out of the contract amount. The above facts charged are examined in accordance with the aforementioned determination criteria.

(B) The point of acceptance of bribe on July 23, 2002

On June 20, 2002, the above money was received in relation to the supply of government-funded materials, such as anti-refluences (22,460,000 won), and the Defendant stated that the amount of the material was returned after the collection of the material was made by the police. However, the prosecutor explicitly stated that the above money was received by rebates, but again stated that the above money was returned by the prosecutor, but in this court, the above money was merely a return of the contract amount after the collection of the contract amount.

In light of the following circumstances, the court statement of the defendant, the second and sixth suspect interrogation protocol of the defendant (including the part concerning the statement of the defendant, the second and the second prosecutor's interrogation protocol of the defendant, and the second prosecutor's interrogation protocol of the defendant against the defendant, i.e., the above money in the interrogation of the defendant in the prosecutor's office, which was acknowledged as a whole, was explained in detail as to whether it was made at the time, and the fact that the money received from the non-indicted 13 reaches about 26% on the basis of total contract amount, etc., it does not seem that the non-indicted 13 delivered the part concerning his interest as a bribe to the defendant. Thus, it is insufficient to recognize that the defendant received the above money as a bribe only by the defendant's statement at the prosecutor's office on this part, and there is no other evidence to acknowledge it otherwise.

On March 26, 2002, the above money was received in relation to the purchase of yellow soil necessary for outdoor raising 20 million won, and the defendant explicitly stated that the above money was received rebates, but in this court, the defendant argued that the above money was merely a contract amount and returned.

In full view of the defendant's court statement, the third prosecutor's protocol of interrogation of the defendant, each prosecutor's protocol of interrogation of the defendant against the defendant, each police's protocol of statement against the non-indicted 14, and the disbursement resolution (the investigation record 555 pages), the non-indicted 14 did not clearly state the nature of the above money, but it was known that the amount received from the non-indicted 14 reaches about 50% on the basis of total contract amount, and the non-indicted 14 did not seem to have delivered his profits as a bribe to the defendant. Thus, it is insufficient to recognize that the defendant received the above money as a bribe only by the defendant's statement at the prosecutor's office on this part, and there is no evidence to prove

(D) Violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (Bribery) on August 23, 2002

The above amount is received in relation to Slve and Reinforcement Corporation of June 27, 2002. The defendant stated that the above amount was received as rebates from the police to the prosecution. However, the defendant argued that the above amount was merely a contract amount and returned amount in this court.

In light of the following circumstances, the defendant himself stated that he could not be consistent with the character of the above money, i.e., the defendant himself, but in light of the fact that the police stated that the defendant changed the amount of KRW 10 million from the construction cost to the amount of KRW 700 to KRW 8 million, and that the defendant stated relatively detailed about the character of the above money, it is difficult to believe the content of the five prosecutorial protocol of the defendant and the third prosecutorial protocol of the defendant's interrogation of the defendant about this part, and each submitted evidence alone is insufficient to recognize that the defendant received all the above amount of the above amount exceeding KRW 2 million which the defendant recognized as above, and there is no other evidence to prove otherwise.

(4) Judgment of the court below

The above determination by the court below is based on facts found by the evidence duly adopted and investigated, and it is reasonable that the nature of each of the money of this case that the defendant received is a bribe in relation to the duties of the defendant, or whether it constitutes an embezzlement (loss on National Treasury) that excessive payment of the down payment, as seen above, should be determined by comprehensively taking into account whether there was a prior agreement with the construction business operator, etc., whether there was an excessive contract with the construction business operator, such as the contract amount, the rate between the contract amount and the amount received, appropriate profits that the construction business operator, etc. can obtain through the contract, the place of receiving and receiving money, the method of receiving money, etc. In light of the records, the above determination by the court below is just and it cannot be said that there was an error of law by misunderstanding the facts or misunderstanding legal principles in the judgment of the court below that acquitted the defendant about each of the charges

3. Conclusion

Therefore, the defendant's appeal is justified only for the assertion of misconception of facts or misapprehension of legal principles as to each acceptance of bribe on October 10, 2002 and each of the violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (Bribery) on July 7, 2003. The court below rejected the appeal under Article 364 (4) of the Criminal Procedure Act on the ground that each of the above crimes of acceptance of bribe and the violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (Bribery) are concurrent crimes under the former part of Article 37 of the Criminal Act with the crime of violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (Bribery) in its holding, each of the above crimes of violation of the Act on the Aggravated Punishment, etc. of Specific Crimes, each of the false public document preparation and the said violation, each of the above crimes is deemed to be concurrent crimes under Article 38 (1) 2 and Article 50 of the Criminal Procedure Act, without examining the grounds for appeal by the defendant on the unfair sentencing.

Criminal facts

The criminal facts acknowledged as a member of a party are as stated in each corresponding column of the judgment of the court below, except for the following changes: “The criminal facts acknowledged as a member of a party are as stated in the separate list of crimes, including the receipt of KRW 6 million from Nonindicted 13 in consideration of the consideration that Nonindicted 13 could receive subcontracting from Nonindicted Co. 16 Co., Ltd. on Oct. 23, 2002, and the receipt of KRW 18 million in total from July 31, 2002 to Nonindicted Co. 13, etc. for seven times during the period from July 31, 2002, and the receipt of bribe in relation to the Defendant’s duties.” As such, it is identical to the facts stated in each corresponding column of the judgment of the court below, except for the changes into “the receipt of bribe from Nonindicted

Summary of Evidence

1. The defendant's partial statement in the trial records of the court below;

1. Each statement of the suspect interrogation protocol of the accused by the prosecution (including Nonindicted 13's statement among the sixth suspect interrogation protocol)

1. Statement made by the prosecutor of the prosecution on Nonindicted 17

1. Each statement of the police suspect interrogation protocol against the defendant (including Nonindicted 13's statement among the second suspect interrogation protocol)

1. Each statement made by the police first and fourth statements of the interrogation protocol of Nonindicted Party 1 (including the part on which the Defendant’s statement is included in the fourth interrogation protocol of the suspect suspect)

1. Each statement made on Nonindicted 2, 7, 9, and 15 by each police interrogation protocol (including the part of the Defendant’s statement among the copies of the interrogation protocol of Nonindicted 2 as to Nonindicted 2)

1. Each statement made by each police officer on Nonindicted 5, 14, and 17

1. Each disbursement resolution (record 306 pages, 329 pages, 334 pages, 814 pages), written statements on actions incurring expenditures (reference materials No. 108 pages, No. 108 pages, page 17 pages), detailed statement on the use of guard (detailed income and expenditure details, and page 421-425 pages of investigation records);

Application of Statutes

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

A. Article 5 subparag. 2 of the Act on the Aggravated Punishment, etc. of Specific Crimes, Article 355(1) of the Criminal Act, Article 2 subparag. 1 of the Local Officers' Officers' Act, and Article 30 of the Criminal Act, inclusive,

B. The point of preparing each false official document in Article 2 of the holding of the court below: Articles 227 and 30 of the Criminal Code (Appointment of Imprisonment)

(c) The holding of each false official document in Article 3 of the holding of the court below: Articles 229, 227 and 30 of the Criminal Act (Optional to Imprisonment)

(d) The point of acceptance of bribe under Article 4 of the holding: Articles 129 (1) and 30 (Selection of Imprisonment) of the Criminal Act;

1. Aggravation of concurrent crimes;

Articles 37 (Aggravation of concurrent crimes for the punishment provided for in the former part of Article 37, Article 38 (1) 2, and Article 50 of the Criminal Act [Aggravated Punishment, etc. of Specific Crimes (Loss of National Treasury, etc.)]

1. Discretionary mitigation;

Articles 53 and 55 (1) 3 of the Criminal Act ( normal consideration, such as the fact that there is no record of punishment, the fact that an amount equivalent to the money embezzled or received is consumed at the expense of the research institute, the fact that a public official has worked as a public official for 25 years)

1. Calculation in the number of detention days before judgment is rendered;

Article 57 of the Criminal Act

1. Suspension of execution;

Article 62(1) of the Criminal Act (Consideration of Circumstances such as Reasons for Discretionary Mitigation)

1. Additional collection:

Article 134 of the Criminal Code, Article 6 of the Act on Special Cases concerning Confiscation of Public Officials' Crimes

[Defendant stated that Non-Indicted 2 and Non-Indicted 7 (Work at the Research Institute until October 27, 2002) or Non-Indicted 10 (Work at the Research Institute from October 28, 2002) who are the president of the Research Institute in collusion with the head of the Research Institute, Non-Indicted 2 and Non-Indicted 7 (Work at the Research Institute) or 10 (Work at the Research Institute from October 28, 2002), which caused losses to the National Treasury, some of them were used for the Research Institute's expenses, and the remainder was distributed to three including the Defendant. While Non-Indicted 2, Non-Indicted 7, and 10, etc. were aware of the fact that the Defendant raised funds in an abnormal manner to cover the shortage of the Research Institute's expenses through a conference held by the Research Institute, they were only used for the Research Institute's expenses, and there is no other clearly stating how the Defendant used the amount of each of the National Treasury loss and the bribery amount in this case by the Public Prosecutor to the extent of 10708 or 7080.

Parts of innocence

Of the facts charged in the instant case against the Defendant, the summary of the charge of acceptance of bribe on October 10, 2002 and July 2, 2003 and the violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (Bribery) on July 7, 2003 is as seen earlier. As seen in the determination of the grounds for appeal, each of the facts charged above constitutes a case where there is no proof of a crime, and thus, the Defendant is acquitted pursuant to the latter part of Article 325 of the Criminal Procedure Act.

Reasons for sentencing

The Defendant’s crime of this case, in collusion with the president and researcher of the research institute while serving as the officer of the research institute, causes a loss to the National Treasury equivalent to 67 million won by using false official documents without any specific crime, and takes and receives a total of 18 million won from business operators on seven occasions in a short period of time, and has a significant nature of the crime. However, according to the statement of “the statement of revenues and expenditures of the investigation record” from 421 to 425, the Defendant used an amount equivalent to the amount from the research institute’s initial revenues and expenditures for 306,00 won received from Nonindicted Co. 31 on May 2, 2002, 50 won received from Nonindicted Co. 45 on March 15, 2002, 50,000 won received from Nonindicted Co. 300,000 won from Nonindicted Co. 61 on April 25, 2002, and 300,000 won from the research institute’s initial revenues and expenditures.

[Attachment Form 5]

Judges Lee Jae-ki (Presiding Judge)

심급 사건

-수원지방법원 2005.4.29.선고 2004고합587

서울고등법원 2005.9.2.선고 2005노970

-대법원 2007.10.12.선고 2005도7112

원심판결

-수원지방법원 2005. 4. 29. 선고 2004고합587 판결

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