[1] The purport of punishing a third party with the same statutory penalty as the crime of offering of a bribe under Article 133(2) of the Criminal Code or the act of delivering a third party's lightnings to the third party

[2] In a case where Defendant A was indicted for having received KRW 100 million in cash from Defendant B with the National Tax Service in relation to tax investigation, and delivered it to Defendant C who was aware of the fact to a public official of the regional tax office for the purpose of offering it as a bribe, the case holding that Defendant C did not interfere with the establishment of the crime of delivery of third-party brains to Defendant A even if the crime of aiding and abetting the offering of bribe constitutes a crime of aiding and abetting

[1] Article 133(2) of the Criminal Act provides that the act of delivering money or goods to a third party for the purpose of accepting a bribe or delivering a bribe received with the knowledge of the fact thereof shall be punished as the crime of offering a bribe under Article 133(1) of the same Act. The crime of acquiring a third-party bribery is established regardless of whether a third party delivers the money or goods received from the third party to the person who is to accept the bribe, and even if a third party delivers the money or goods received from the third party to the person who is to accept the bribe, the crime of offering a bribe is not established separately in addition to the crime of delivering the bribe, since the degree of liability for the act of delivering the bribe is much larger than that of the assistive crime of offering the bribe in general, and there is no difference between the third party and the person who is aware of the fact, and thus, the crime of offering a bribe is not established as an aggravated punishment for the third party to the crime of offering a bribe. It is understood that the crime of offering a bribe is not an aggravated punishment for the third party to the bribe.

[2] In a case where Defendant A was prosecuted on charges of receiving KRW 100 million in cash from the National Tax Service in relation to tax investigation to Defendant B for the purpose of offering it as a bribe to public officials of the regional tax office, the case holding that the legislative body did not comprehensively interpret Article 133(2) of the Criminal Act that the legislative intent of not punishing the attempted crime of offering a bribe was to fill the gap of punishment due to not punishing the attempted crime of offering a bribe, that the degree of responsibility for the act of delivering a bribe is much larger than that of the attempted crime of offering a bribe in general, and that there is no difference with the witness, and thus, it is understood that Article 133(1) of the Criminal Act and Article 133(2) of the Criminal Act are to be punished as the crime of acquiring a third-party bribery, not the crime of aiding and abetting a bribe, and that the legislative intent of Article 133(2) of the Criminal Act does not include the crime of aiding and abetting a bribe in the case of offering a bribe to the third party.

[1] Article 133(2) of the Criminal Act / [2] Articles 32 and 133(1) and (2) of the Criminal Act

[1] Supreme Court Decision 97Do1572 Decided September 5, 1997 (Gong1997Ha, 3195) Supreme Court Decision 2002Do1283 Decided June 14, 2002 (Gong2002Ha, 1746) Supreme Court Decision 2004Do756 Decided June 15, 2006, Supreme Court Decision 2007Do3798 Decided July 27, 2007, Supreme Court Decision 2007Do10601 Decided March 14, 2008

Defendant 1 and six others

Defendant 5 and one other and the prosecutor

Madern

Attorneys Dong Dong-dong et al.

Seoul Northern District Court Decision 2009Gohap363, 383 decided October 1, 2010

1. The part concerning Defendant 6 among the judgment below is reversed.

Defendant 6 shall be punished by imprisonment with prison labor for not more than two years and by a fine not exceeding ten million won.

When Defendant 6 fails to pay the above fine, Defendant 6 shall be confined in a workhouse for the period calculated by converting KRW 50,000 into one day.

However, the execution of the above imprisonment shall be suspended for three years from the date this judgment becomes final and conclusive.

To order the provisional payment of an amount equivalent to the above fine against Defendant 6.

2. All appeals filed by the Defendant 5 and 7 and the Prosecutor’s Defendant 1, 2, 3, 4, and 7 are dismissed.

1. Judgment on the prosecutor's grounds for appeal

A. The part concerning the acceptance of bribe by Defendant 1, 2, 3, and 4 and the part concerning the offer of bribe by Defendant 7

(1) Issues

In the instant indictment, Defendant 1, 2, 3, and 4 (hereinafter “Defendant 1, etc.”)’s acceptance date of bribe is indicated as “ around July 2006.” However, through the indictment and the written opinion submitted to the lower court on May 26, 2010, Defendant 6, who received KRW 100 million from Nonindicted Co. 1 Company 1 in the name of Nonindicted Co. 2 tax accounting corporation on several occasions under the pretext of the consideration for arranging Nonindicted Co. 1’s tax investigation, deposited KRW 666,00,000,000, which was transferred to Nonindicted Co. 1 Company 2 in the name of Nonindicted Co. 1 Company, and delivered it to Defendant 7 through Defendant 5 under the pretext of expenses for tax officials. ② around that time, Defendant 7 provided the said KRW 100 million to Defendant 1, etc. as a bribe through Defendant 5, specifying the details and method of raising funds of KRW 100 million and its delivery.

Meanwhile, Defendant 5 led Defendant 1, etc. to the facts that he received KRW 100 million from Defendant 6 and delivered the above KRW 100 million to Defendant 7’s order. Defendant 5 stated that Defendant 1, etc. did not deliver KRW 100 million to Defendant 1, etc. in addition to this case, Defendant 1, etc. delivered KRW 20 million to Defendant 1, etc., only on July 2006, when Defendant 206, which was directly unloaded to Daejeon, ○○○.

However, according to Defendant 5’s partial statement in the original judgment and the fact-finding inquiry letter (the trial record 853 pages) on July 12, 2010 of the new card of Defendant 5, Defendant 5, on June 30, 2006, sent the food cost of KRW 438,000 to Nonindicted 3’s corporate card that he uses with Defendant 1, etc., and it is recognized that Defendant 5 did not use the above “○○○” restaurant other than the above “○○○” restaurant on June 30, 2006.

Ultimately, in this part of the facts charged, the issue is whether Defendant 5 delivered KRW 100 million prepared by Defendant 6 through money laundering to Defendant 1, etc. from June 30, 2006 to July 1, 2006.

(2) Determination

(A) First of all, the lower court acknowledged the fact that Defendant 6, from July 25, 2006 to July 27, 2006, deposited KRW 100 million by using Nonindicted 4 and other accounts, and Defendant 5, through Defendant 5, delivered the said KRW 100 million to Defendant 7.

According to the records, on July 25, 2006, KRW 45 million was withdrawn from the Defendant 6’s account, and KRW 55 million was deposited from the account under the name of Nonindicted 4 (the name of Nonindicted 6, Defendant 6), respectively, and KRW 60 million was withdrawn from the account under the name of Nonindicted 4 on July 26, 2006, and KRW 5 million was withdrawn from the account under the name of Nonindicted 4 on July 26, 2006, and KRW 30,3 million was withdrawn from the other money under the name of Nonindicted 7 (the name of Nonindicted 6, Nonindicted 6), KRW 17.5 million was withdrawn from the account under the name of Nonindicted 28 (the name of Nonindicted 6, Nonindicted 6), and KRW 706,80,000 was deposited from the account under the name of Defendant 2 on July 26, 206 in the name of Nonindicted 46, 207.

In light of the above facts, Defendant 6’s delivery of KRW 100 million to Defendant 7 and confession of the fact that Defendant 6 could use it as a case fee for the tax officials, the possibility that Defendant 6 paid KRW 100 million to Defendant 7 in order to use it as a case fee for Defendant 6’s tax officials on July 2006 is high. However, inasmuch as there is no evidence to acknowledge that Defendant 6 paid KRW 100 million to Nonindicted 4 account by July 27, 2006, Defendant 6 delivered KRW 100 million to Defendant 7 “ around July 27, 2006,” it cannot be readily concluded that Defendant 6 paid KRW 100,000 to Defendant 7 under the name of a tax official as a case fee in relation to the tax official on July 27, 2006.

In the end, this part of the judgment below is erroneous by misapprehending the facts against the rules of evidence.

(B) However, in a criminal trial, the recognition of criminal facts ought to be based on strict evidence having probative value, which makes a judge not to have any reasonable doubt. Therefore, in a case where the prosecutor’s proof does not reach the degree of confiscing such conviction, the interest of the defendant should be determined even if there is doubt of guilt, such as the defendant’s assertion or defense is inconsistent or unreasonable. Furthermore, the subject of such strict proof should include both specific criminal facts as indicated in the indictment by the prosecutor, and it should not be recognized that there is proof of criminal facts on the ground that there is a possibility that the crime was committed at another time and place despite such lack of proof (see Supreme Court Decision 2010Do1628, May 13, 201, etc.).

(C) Based on the above legal doctrine, in full view of the following circumstances acknowledged by the evidence duly admitted and investigated by the lower court, the evidence of this part of the charges cannot be deemed to have been sufficiently proven.

① Considering the circumstances leading up to Defendant 5’s statement on the crime of offering of a bribe as properly cited by the lower court, the first statement and the circumstances leading up to the reversal thereof, it is difficult to give high credibility to Defendant 5’s statement.

② there is insufficient evidence to prove that Defendant 6 prepared KRW 100 million to be delivered to Defendant 1, etc. prior to the “2006 Jun. 30, 2006” or “ July 1, 2006.”

A prosecutor asserts that, on June 29, 2006, Defendant 6 prepared funds including the above KRW 20 million and other funds together with Defendant 6’s account amounting to KRW 100 million, and then delivered them to Defendant 7, on the ground that the withdrawal was made from Defendant 6’s account amounting to KRW 20 million. However, the prosecutor failed to find any data proving the method of separately raising large amount of funds up to KRW 80 million prior to Defendant 6’s “the June 30, 2006” or “the July 1, 2006,” even if Defendant 6 conducted a broad account tracking in the course of investigation.

Even if Defendant 6 prepared KRW 100 million as alleged by a family prosecutor, Defendant 7 and Defendant 5 made a statement with the assent that Defendant 6 was in custody of KRW 100 million delivered to Defendant 5 (Provided, That only the custody method is inconsistent with each other). Defendant 6 prepared KRW 100 million “ around June 29, 2006,” the fact that Defendant 5 received the above KRW 100 million and delivered “from June 30, 2006 to July 1, 2006” cannot be inconsistent with the fact that Defendant 5 gave Defendant 1, etc. “from June 30, 2006 to July 1, 2006.”

③ Both Defendant 7, Defendant 6, and Defendant 5 make a statement that Defendant 6 delivered KRW 100 million to Defendant 5 under the pretext of the case cost as to Defendant 1, etc. However, as seen in the above (a), it cannot be readily concluded that Defendant 6 delivered KRW 100 million to Defendant 7 “ around July 27, 2006” but it is highly probable that Defendant 6 sent KRW 100 million to Nonindicted 4’s account on July 25, 2006, after depositing KRW 100 million, and making money laundering out. The evidence submitted by the prosecutor alone does not sufficiently resolve the time when KRW 100 million was arranged as above.

(3) Sub-decisions

In the end, the judgment of the court below that acquitted Defendant 1, 2, and 3 of this part of the facts charged is just in its conclusion, and there is no error as alleged by the prosecutor in its conclusion [the acceptance of money and valuables (Defendant 1: 10 million won, Defendant 2, and Defendant 3 respectively) from Defendant 5 who had been tried during the investigation process or the trial process of this case is about criminal facts separate from the facts charged of this case, and the above Defendants cannot be punished in light of the principle of no accusation.]

B. Part of the violation of the Attorney-at-Law Act by Defendant 6

(1) The judgment of the court below

The lower court determined that the evidence submitted by the prosecutor alone cannot be deemed as sufficient evidence on this part, on the grounds that: (a) Nonindicted 10’s statement made by Nonindicted 10 investigation agency and Nonindicted 11’s investigation agency and the legal statement made by the lower court, which correspond to this part of the facts charged, were rejected; (b) Nonindicted 5 accounting corporation to which Defendant 6 belongs and Nonindicted 2 tax accounting corporation to which Defendant 7 belong, actually engaged in tax investigation and response activities on Nonindicted 1 corporation; (c) the service payment was neither remitted nor paid in cash to Defendant 6’s personal account; (d) Nonindicted 5 accounting corporation and Nonindicted 2 tax accounting corporation were remitted to Nonindicted 13 and Nonindicted 2 tax accounting corporation’s corporate account; and (e) Nonindicted 5 accounting corporation issued a tax invoice on the service payment to Nonindicted 1 corporation; used the service payment for the corporation’s funds; (e) in light of the tax accountant fee list, and the Certified Public

(2) The judgment of this Court

(A) Recognized facts

According to the evidence duly admitted and examined by the court below, the following facts are recognized:

1) On March 1, 2006, the Daejeon Regional Tax Office notified Nonindicted Co. 1 Company that it would conduct a tax investigation from March 10, 2006 to April 4, 2006. Once Nonindicted Co. 1 applied for a postponement of tax investigation, it was ultimately conducted from May 11, 2006 to June 7, 2006.

2) As such, Nonindicted 12, the owner of Nonindicted Company 1, who was the owner of Nonindicted Company 1, appears to have confirmed that Nonindicted 11 (the vice president at that time was named as the vice president) who was in charge of the management of Nonindicted Company 1’s funds was aware of the existence of a person who was aware of in Daejeon regional tax office. Nonindicted 11, according to Nonindicted 12’s order, requested Defendant 6, the representative certified public accountant of Nonindicted 5’s accounting firm, who was in charge of the accounting audit of Nonindicted Company 1, from 200, to assist in the issue of

3) Defendant 6, who was in office as the head of the post office of the Daejeon Regional Tax Office, visited Defendant 7 who retired on or around September 2004, and jointly worked for Nonindicted 5 accounting firms and Nonindicted 2 tax accounting corporations, whose representative is Defendant 7, engaged in the duty of tax investigation of Nonindicted 1 Company.

4) Around May 2, 2006, Nonindicted Co. 1 entered into a service contract between Nonindicted Co. 5 and Nonindicted Co. 5 (in relation to the tax investigation of Nonindicted Co. 1’s stock company, value-added tax is set aside, and the value-added tax is paid before May 15, 2006) and the hourly remuneration is KRW 400,000 per hour (However, the hourly remuneration limit is KRW 10 million). The said service contract states that the mandatory is “Nonindicted 5’s Seoul Accounting Division and Nonparty 1.”

On the other hand, on May 2, 2006, Defendant 6 entered into a service agreement with Nonindicted 13, an accounting firm affiliated with Nonindicted 5 accounting firm, on the tax investigation of Nonindicted 2, with Nonindicted 2, and Defendant 6 entered into the said service agreement with Nonindicted 2, and stated that 60% of the contingent remuneration determined by Nonindicted 2 and Nonindicted 1, shall be the remuneration of Defendant 6 and Nonindicted 13.

5) From May 11, 2006 to June 7, 2006, Defendant 1, etc. conducted a tax investigation with respect to Nonindicted Incorporated Company 1. During the investigation process, the key issue was whether Nonindicted Incorporated 1 may impose corporate tax on Nonindicted Incorporated 1 by deeming that Nonindicted Incorporated 1 waived its claim against Nonindicted Incorporated 14 with respect to Nonindicted Incorporated 1’s funds embezzled by Nonindicted Incorporated 14, the former representative director of Nonindicted Incorporated 1, in the process of the investigation.

6) On June 12, 2006, Defendant 1, etc. submitted an application for tax dispute advice along with the opinion that it should be deemed to waive the claim against Nonindicted Company 14 and taxation in accordance with the Regulations on the Management of Tax Dispute Consultation Affairs on June 12, 2006 (the above application was approved in the order of Defendant 2, 1, and 15). On June 13, 2006, the Daejeon taxpayer protection officer of the regional tax office submitted an opinion on the issues to submit the above issues to Nonindicted Company 1 by June 14, 2006. Accordingly, Nonindicted Company 1 submitted a written opinion to the said taxpayer protection officer on June 14, 2006.

7) On June 22, 2006, the taxpayer protection officer referred the above agenda to the Daejeon Regional Tax Office Advisory Committee on Taxation Dispute (the above Committee shall be the chairperson of the Daejeon Regional Tax Office, consisting of seven members, such as the director of the division of the Daejeon Regional Tax Office, and the contents of the resolution shall not have the legal binding power, but have substantial binding force for taxpayers). On June 26, 2006, the above Committee held on June 26, 2006, held that one of the opinions of taxation and seven of the opinions of non-taxation should be non-taxation.

8) Meanwhile, between Nonindicted Co. 1 and Nonindicted Co. 2 on or around June 1, 2006, a separate service contract was concluded with respect to the above tax investigation. The above service contract states that Nonindicted Co. 1 deposits KRW 600 million (excluding value-added tax) prior to June 15, 2006, at the time when the business related to the tax investigation of Nonindicted Co. 1 was completed in the account of Nonindicted Co. 2.

9) Pursuant to the service contract under the above paragraph 4, Nonindicted Co. 1 deposited KRW 44 million with Nonindicted Co. 13’s account around June 8, 2006 and KRW 11 million around June 23, 2006 and KRW 55 million in total.

Meanwhile, Nonindicted Co. 1 deposited KRW 20 million on June 15, 2006, KRW 460 million on June 2006, and KRW 660 million on June 20, 2006, and KRW 191,200,000 on June 20, 2006 pursuant to the service contract under the above paragraph (8). Nonindicted Co. 2 deposited KRW 143,400,00 on June 20, 2006 with Defendant 6’s account, and KRW 143,60,000 on KRW 143,40,00 on Nonindicted Co. 13’s account, and deposited KRW 143,40,00 on June 26, 2006 with Nonindicted Co. 13’s account.

10) On July 3, 2006, the Daejeon Regional Tax Office notified non-indicted 1 corporation of the results of tax investigation that it will impose KRW 268,523,898 as corporate tax for the year 2001, and KRW 63,240,529 as corporate tax for the year 2005, and KRW 331,764,427 as corporate tax for the year 201.

(B) Determination on the grounds for appeal

1) First of all, the lower court’s rejection of all of the probative value of Nonindicted 11’s statement in the lower court or the prosecutor’s office, consistent with the facts charged, is without merit

A fact-finding judge who has a full power over the determination of evidence ought to take account of the perception obtained and examined evidence in the trial proceedings in fact-finding. In addition, the judge’s determination of probative value of evidence should conform to logical and empirical rules, and the degree of formation of a conviction in a criminal trial should not be a reasonable doubt. However, it is not required to exclude all possible doubts, and rejection by causing doubts without reasonable grounds, which is recognized as probative value, goes beyond the bounds of the principle of free evaluation of evidence. The term “reasonable doubt” refers not to all questions and correspondences, but to the reasonable doubt as to the probability of a fact that is inconsistent with the facts requiring proof based on logical and empirical rules, and it does not constitute a rational doubt (see, e.g., Supreme Court Decision 2010Do12728, Jan. 27, 2011).

The court below rejected the probative value of Non-Indicted 11’s statement consistent with the facts charged, in light of the statement that Non-Indicted 11’s partial statement in the court below, i.e., Defendant 6 and the tax investigation response did not use the word “non-Indicted 11” once, and Defendant 6 stated that Defendant 6 would make a large amount of rent, and that Defendant 6 would aid and make a large amount of rent, and that Defendant 6 would not give money for street expenses, and that KRW 600 million can be regarded as a contingent fee, it was difficult to believe part of Non-Indicted 11’s statement consistent with the facts charged.

However, while making the above statements in the court below at the court below, most of the prosecutorial statements were maintained as shown in the following 3). In particular, in relation to the nature of the KRW 660 million (in addition to value added tax) remitted to Nonindicted 2 tax accounting corporation, Nonindicted 11 stated that “I would like to make it difficult to express it, and that I would like to cause less tax if you face to face,” “I would like to cause less than 60 million if you face to face,” “(the above 660 million won) will be included,” “I would think that there would be little amount of tax at that time,” and “I would like to make sure that there would be a little amount of tax at that time, so I would like to make a request to Defendant 6 for a more help,” and “I would like to request it not normal.”

Ultimately, examining the court's statement in the court below by Non-Indicted 11, it is nothing more than the reversal of the part that the above KRW 660 million was paid to the public officials belonging to the Daejeon Regional Tax Office as the street funds to the public officials belonging to the Daejeon Regional Tax Office, or it cannot be deemed that the previous prosecutor's statement was reversed by making a statement that the above KRW 660 million was pure service costs. Moreover, there is no reason or motive to make a false statement unfavorable to the defendant 6, who had been able to assist Non-Indicted 11 in the tax investigation by the non-Indicted 1 corporation.

Therefore, the lower court should have determined that the part of Non-Indicted 11’s statements of the lower court and the part of Non-Indicted 11’s prosecutor’s statements, which were reliable, should be prepared and selected through a comprehensive comparison and analysis with other evidence and should have been found based on the fact-finding. The lower court erred by exceeding the scope and limit of reasonable free evaluation of evidence.

2) Meanwhile, under Article 111 of the Attorney-at-Law Act, the phrase “to receive money, valuables, entertainment, or other benefits under the pretext of soliciting or arranging the case or affairs handled by a public official” refers to the case or affairs handled by a public official, which is provided with labor or convenience in connection with a case or affairs handled by a public official, and it does not include cases where money, valuables, etc. are provided or received in return for such offering (see, e.g., Supreme Court Decision 2003Do3145, Sept. 24, 2004). However, in cases where money and valuables are received under the pretext of soliciting the case or affairs handled by a public official by a public official by providing labor or convenience in connection with the case or affairs handled by a public official, and the nature of consideration is indivisible and received by combining it with that of the case or affairs handled by a public official, they have the nature of solicitation in its entirety indivisiblely (see, e.g., Supreme Court Decision 2007Do3044, Apr. 10

3) Based on the above legal principles, comprehensively taking account of the facts acknowledged in paragraph (a) above and the following circumstances acknowledged by the evidence duly admitted and investigated by the court below, it cannot be readily concluded that Nonindicted Co. 1’s total amount of KRW 660 million remitted to Nonindicted Co. 2 tax accounting corporation has the nature of the consideration for solicitation or mediation concerning the case or affairs handled by the tax officials. However, the above KRW 660 million can be sufficiently recognized that Nonindicted Co. 5’s and Nonindicted Co. 2’s tax accounting corporation’s total amount of KRW 660 million are inseparably combined with the consideration for labor provided to Nonindicted Co. 1 in connection with the tax investigation of Nonindicted Co. 1.

① Nonindicted 2’s tax accounting corporation’s commission of Nonindicted 1’s tax audit with Nonindicted 5 accounting corporation was not due to Nonindicted 1’s need for the assistance of the tax accounting corporation, but due to Defendant 7’s intent to utilize the connection to the Daejeon Regional Tax Office. In fact, Defendant 7 appears to play such a role.

In other words, at the time of prosecutorial investigation, Nonindicted 11 stated that: (a) the tax accounting corporation should work at the National Tax Service in order to have Defendant 6 less amount of taxes; and (b) the tax accounting corporation sent this content to Nonindicted 12, the owner of Nonindicted Company 1, who was an employee of Nonindicted Company 1 (i.e., one investigation record No. 103); and (c) the court below stated that there was a statement to the effect that there was a statement similar thereto at the time of the investigation by the prosecution; (b) Nonindicted 11 did not request the introduction of the tax accounting corporation to act on behalf of Defendant 6 at the time of the investigation by the prosecution; and (c) Defendant 6 was stated to the effect that, although he was unaware of the public official belonging to the Daejeon Regional Tax Office, he would know about the fact that he was aware of the fact that he was acting on behalf of Nonindicted Company 2 in connection with the tax investigation by Nonindicted Company 1 in the court below (No. 1 investigation record No. 330 through 31).

Meanwhile, Defendant 6 stated that Defendant 7 should conduct a tax investigation in the Daejeon Regional Tax Office, and Defendant 7 had worked for Nonindicted Incorporated Company 1, and that Defendant 7 could do so, and Defendant 7 would be able to do so, and Defendant 6 stated that Defendant 11 would be able to deal with less taxes in connection with the Daejeon Regional Tax Office’s tax investigation. Furthermore, Defendant 6 stated that Defendant 7 did not have any reason to leave Defendant 7, if he was to respond only to the tax investigation by document (No. 410 through 411 of the investigation record).

Defendant 7 also stated that Defendant 6’s request for tax audit of Nonindicted Company 1 was made by Defendant 6 at the time of the prosecutor’s investigation to the effect that he would have made the maximum amount of taxes under his influence (No. 646 pages of investigation record 2: Defendant 5, in charge of practical affairs at the time, would have to impose taxes of KRW 4 billion through Defendant 5, who was in charge of practical affairs at the time, and Defendant 7 asked the tax investigation team to present the agenda to the tax dispute deliberation committee on the tax issues once considering that it is difficult to reduce taxes in reality, and stated that Defendant 6 could have reduced the maximum amount of taxes (No. 650 pages of investigation record 2: 650).

② Under the service contract dated June 1, 2008, Nonindicted Co. 1 did not seem to have been determined through sufficient discussions between the parties by applying the tax accountant remuneration table or the certified public accountant’s remuneration provision to the expected reduced or exempted tax amount of Nonindicted Co. 2’s service cost, which was paid to Nonindicted Co. 1 in accordance with the service contract of June 1, 2008, and it appears that Defendant 6 believed the horses of Nonindicted Co. 1 and accepted the amount requested by Defendant 6.

In other words, with regard to the process of determining the service cost of Nonindicted 2’s tax accounting corporation as KRW 660 million at the time of prosecutorial investigation, Nonindicted 11 stated that Defendant 6 first asked Defendant 6 to write off his hand so that the tax amount would be less than KRW 20 billion, and that Defendant 6’s tax amount would be less than KRW 1 billion at the time of Defendant 6’s tax investigation, and Defendant 6 sent it to Nonindicted 12 on the ground that the tax amount would be more than KRW 1 billion at the time of resolving the tax problem, Nonindicted 12 again requested Defendant 6, and Defendant 6 would be more than KRW 4.5 billion, and Defendant 6 would be exempted from the amount of KRW 600 million in return (the investigation record No. 102, 102, 233, 234 through 331, 32 and 331).

Meanwhile, Defendant 6 acknowledged the fact that Nonindicted 11 should pay taxes to Nonindicted 4 through 50 million won in the prosecution investigation and that the amount of taxes should be KRW 600 million in fee, and Defendant 6 stated that the amount of taxes should be KRW 4 through 7 was known through Defendant 7 (in investigation record, KRW 431 through 432, KRW 589), Defendant 7 also stated that the amount of taxes should be imposed at the time of the prosecutor investigation so that the amount of taxes would be less than KRW 4 billion, while the amount of taxes should be imposed at the time of the prosecutor investigation, Defendant 6 said that the amount of taxes should be paid as a contingent fee of KRW 4 billion in the amount of taxes to be imposed at the time of the prosecutor investigation is less than KRW 4 billion (2 right 621, KRW 647 of investigation record).

③ It is difficult to view that the full amount of KRW 660 million, which Nonindicted Co. 1 remitted to Nonindicted Co. 2’s tax accounting corporation, is a lawful contingent fee.

First of all, regarding the reasons why Nonindicted Co. 1 deposited KRW 660 million into Nonindicted Co. 2’s account at the time of prosecutorial investigation, Nonindicted Co. 11 stated that, at the time of paying the service cost, Nonindicted Co. 1 was at issue of accounting management from the standpoint of Nonindicted Co. 1; however, Defendant 6 stated to the same effect in the lower court court’s decision (No. 1 right 235 pages) and that Defendant 6 was remitted KRW 660 million to Nonindicted Co. 2’s tax accounting corporation on its own proposal ( Defendant 6 was in charge of Nonindicted Co. 1’s accounting audit and disclosure of the conclusion of the above service contract, and thus, it was argued that Nonindicted Co. 5 received contingent fees in the name of Nonindicted Co. 2’s tax accounting corporation, but the aforementioned assertion was raised only in the court below, and it is difficult to accept it).

In addition, contingent remuneration is generally paid when the success result appeared or at least is likely to occur due to the service business. In the case of Nonindicted Co. 1, the total amount of KRW 660 million was already transferred to Nonindicted Co. 2’s account on June 15, 2006 and June 20, 2006 (the Daejeon Regional Tax Office’s Taxation Dispute Advisory Committee was held on June 26, 2006, and the investigator’s opinion was presented that it should be taxed as at the time of deliberation. Furthermore, the date of notification of the result of the tax investigation of Nonindicted Co. 1 was “the date of July 3, 2006, which was 2006.” The Defendant 6 stated that the contingent remuneration contract was not paid for KRW 60,000,000,000,000 for more than 206,000,0000,000 won, which was 25,000,000 won.

On the other hand, on June 20, 2006, Non-Indicted 2 deposited KRW 191,20,000 with Defendant 6’s account and KRW 143,40,000 with the account in the name of Non-Indicted 13, and KRW 334,60,000 with the account in the name of Non-Indicted 13. Unlike the above KRW 143,40,000 deposited with the account in the name of Non-Indicted 13, the above KRW 191,20,730,000 deposited with Defendant 6’s account in the name of Non-Indicted 5’s account can only be confirmed, and there is no objective evidence to acknowledge that the total amount of KRW 191,200,000 with the account in the name of Non-Indicted 13 was attributed to Non-Indicted 5’s accounting corporation.

Furthermore, in order to pay the case expenses related to the tax investigation of Nonindicted Company 1 to Defendant 7 with Defendant 1 and other tax officials, Defendant 6 stated that, on July 25, 2006, Defendant 6 deposited 45 million won from Defendant 6’s account and 55 million won from Defendant 5’s account in the name of Nonindicted Accounting Corporation 5’s account, and prepared KRW 100 million through money laundering. However, if the above 660 million won was just contingent fees, it is difficult to find reasonable grounds for Defendant 6 to prepare the case expenses for tax officials at the expense of himself or Nonindicted Accounting Corporation 5’s account.

(3) Sub-decisions

Ultimately, the judgment of the court below which acquitted this part of the facts charged is erroneous and adversely affected by misapprehending the legal principles on the violation of the Attorney-at-Law Act.

2. Determination on the grounds of appeal by the defendant 5 and 7

A. Judgment on the mistake of facts or misapprehension of legal principles by Defendant 7

(1) Defendant 7’s assertion

Defendant 5 is in the position of co-principal in the crime of offering of bribe by Defendant 7, and even if not, it does not constitute a “third party” as provided in Article 133(2) of the Criminal Act, since it constitutes an aiding and abetting crime.

(2) Determination

(A) First of all, the court below was just in holding that Defendant 5 did not constitute a co-principal in the crime of offering of a bribe by Defendant 7 and Defendant 6, taking into account the time of the original judgment acknowledged by the evidence duly admitted and investigated by the court below, the background leading up to the offering of a bribe by Defendant 7 and Defendant 5, and the relationship between Defendant 7 and Defendant 5, and there was no error as alleged by Defendant 7.

(B) Furthermore, in full view of the following circumstances, even if Defendant 5’s domestic household constitutes an aiding and abetting offender in Defendant 7’s crime of offering of bribe, there is no obstacle to the establishment of the crime of delivery of third-party brain under Article 133(2) of the Criminal Act.

① Unlike the case where money and valuables were received between the joint principal offenders of the crime of offering of a bribe, the illegality of the act is more concrete and realistic in the case where the public official was delivered money and valuables to the person who wants to know the fact that the money and valuables were offered as a bribe. However, the Criminal Act does not punish the attempted crime of offering of a bribe. As such, in a case where the person who received the money and valuables as mentioned above did not actually deliver such money and valuables to the public official, no punishment may be imposed. Considering such aspect, our legislators have intended to fill the gap in punishment that may arise due to the failure to punish the attempted crime of offering of a bribe by prescribing Article 133(2) of the Criminal Act.

② Article 133(2) of the Criminal Act provides that the act of delivering money or goods to a third party for the purpose of accepting a bribe, or the act of delivering a bribe to a third party knowing the fact thereof shall be punished as the crime of offering a bribe under Article 133(1) of the same Act. The crime of acquiring a third-party bribery is established by receiving money or goods even though the third party delivers the money or goods received from the third party to the person who is to accept the bribe, regardless of whether or not the third party delivers it, and further, the third party delivers the money or goods received to the person who is to accept the bribe, and thus, the crime of offering a bribe is not established separately from the crime of delivering the bribe (see Supreme Court Decision 97Do1572, Sept. 5, 1997, etc.). This is understood as the statutory punishment for the crime of offering a bribe under Article 13(1) of the Criminal Act, not as the crime of offering a bribe, because the degree of liability for the act is much larger than the crime of offering a bribe.

③ If a third party delivers money and valuables received from a person to a person who is to accept a bribe, it is reasonable to interpret that the crime of delivery of the third party acceptance of the bribe is incorporated into the crime of offering the bribe in case of the third party and only the crime of offering the bribe is established. Ultimately, the crime of delivering the third party acceptance of the bribe and the crime of offering the bribe to the third party are all established, and there is no disadvantage that can be aggravated punishment as concurrent crimes

④ An act of aiding and abetting under the Criminal Act refers to any direct or indirect act that facilitates the commission of a principal offender with the knowledge that the principal offender is committing a crime. A person who knowingly receives money and valuables for the purpose of accepting a bribe is deemed to have many cases of being assessed as an aiding and abetting in committing a crime of offering a bribe or a crime of accepting a bribe by a person who received a bribe. As such, the legislative purport of Article 133(2) of the Criminal Act itself is to be understood as not to include a offering of a bribe or an aiding and abetting of a bribe in the “third party” under Article 133(2) of the Criminal Act.

(3) Ultimately, Defendant 7’s assertion on this part cannot be accepted.

B. Determination on Defendant 5 and 7’s assertion of unfair sentencing

After considering both the sentencing factors favorable to and unfavorable to Defendant 5 and 7 as indicated in the argument in the instant case, the lower court sentenced Defendant 5, beyond the lower limit recommended in the sentencing guidelines of the Sentencing Committee, with the suspension of execution of two years and the collection of additional collection in one year and six months, and with the suspension of execution of two years to Defendant 7, respectively.

Considering the gravity of the instant crime, its social harm and danger, the method of criminal conduct, and the criminal records of Defendant 5’s same kind of crime, even if considering the various circumstances asserted by Defendant 5 and 7 in the trial, the sentence of the lower court is not deemed to be excessively unreasonable compared to the degree of Defendant 5 and 7’s liability.

3. Conclusion

Defendant 5 and 7’s appeal and prosecutor’s appeal against Defendant 1, 2, 3, 4, and 7 are without merit, and all of these appeals are dismissed (However, according to the records, it is recognized that Defendant 7 received KRW 100 million from Defendant 6 after the decision on the tax amount against Nonindicted Co. 1 was made, and Defendant 7’s assertion does not materially disadvantage Defendant 7’s exercise of the right of defense in light of the past litigation process. Therefore, among Defendant 7’s criminal facts acknowledged by the lower court, the phrase “to impose less tax amount” as stated in the fourth and fifth reduction of the lower judgment and the third one multiplied by the lower court’s non-indicted 7’s criminal facts.

On the other hand, since the prosecutor's appeal against the defendant 6 is well-grounded, the part against the defendant 6 among the judgment below is reversed, and it is again decided as follows after pleading.

Defendant 6, around April 2006, at the office of Non-Indicted 1 Co., Ltd. located in Guro-gu Seoul Metropolitan Government, from Non-Indicted 11, the director in charge of financial affairs of Non-Indicted 1 Co. 1, to whom the amount of taxes would be imposed is asked to inquire about what extent the taxes would be imposed, and Non-Indicted 11, upon receipt of a request from the Daejeon Regional Tax Office. The same shall apply to the case where a person in charge of tax investigation is aware of about KRW 20 billion as a result of his internal investigation. A person in charge of tax investigation is aware of the staff of the Daejeon Regional Tax Office, and through the person, he would be able to impose taxes less than KRW 20 billion on the employee of the Daejeon Regional Tax Office. The person in charge of tax investigation would be able to receive money and valuables from Non-Indicted 1 Co. 1’s national bank account in the name of Non-Indicted 2, on June 15, 2006, 2006, 306.

1. Statement of Defendant 6’s partial statement in the first trial record of the court below

1. Part of the witness’s statement in the second trial record of the court below

1. Each of the original or copy of the protocol of interrogation of each prosecutor's suspect as to the defendant 6, 7, 5, and 3 (including the part concerning the statement in replacement of the non-indicted 11)

1. Each part of the prosecutor’s statement made against Nonindicted 11 and 13

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

Article 111 of the former Attorney-at-Law Act (amended by Act No. 8321 of March 29, 2007) (Concurrent Imposition of Imprisonment and fine)

1. Detention in a workhouse;

Articles 70 and 69(2) of the Criminal Act

1. Suspension of execution;

Article 62(1) of the Criminal Act (Consideration of favorable Sentencing factors among the Reasons for Sentencing below)

1. Order of provisional payment;

Article 334(1) of the Criminal Procedure Act

Considering the importance of the instant crime, its social harm and danger, and the amount of money received by Defendant 6, Defendant 6’s criminal liability is very heavy.

However, Defendant 6’s KRW 334 million received from Nonindicted Co. 1 (the amount stated in the indictment, in fact, is KRW 334,600,00) is indivisiblely combined with the consideration for labor provided in connection with the tax investigation by Nonindicted Co. 1, and thus, it is not possible to specify the consideration for Defendant 6’s good offices (the amount actually used as a bribe to a tax official, but there is no discussion about the amount actually used as a bribe with Nonindicted Co. 1). Defendant 6 was detained for about five months at the lower court, and health conditions were not good due to lightization and urology. In addition to the instant crime, there is no criminal power; in particular, even though Defendant 6 and Defendant 7 were indicted under different names, it seems that there is no particular difference in the gravity of the criminal liability recognized in the record, Defendant 6’s imprisonment in the case of Defendant 7, and it is necessary to consider the sentencing between Defendant 6 and Defendant 6 in the lower court’s imprisonment for two years, compared with the degree of equity between Defendant 7 and Defendant 6.

In addition to the above sentencing factors, the punishment shall be determined as ordered by comprehensively taking into account all the sentencing factors indicated in the arguments in the instant case, including Defendant 6’s age, career, character and conduct, family relationship, and circumstances after the crime (the amount received as consideration for solicitation or good offices with respect to a case handled by public officials by Defendant 6 cannot be specified, and thus no additional collection is made (see, e.g., Supreme Court Decision 2009Do2453, May 26, 2011).

Judges Maximum Pung (Presiding Judge)