1. The judgment below is reversed.

2. The defendant shall be punished by imprisonment for one year;

3. 45,00,000 won shall be collected from the defendant.

1. Summary of grounds for appeal;

A. As a matter of course, the Defendant’s misapprehension of the legal doctrine already returned the amount of KRW 10 million, which was partially KRW 45 million received in the instant case, the amount should be deducted from the additional collection charge.

Nevertheless, the court below calculated the total amount of money received by the defendant as an additional collection charge. The court below erred by misapprehending the legal principles that affected the conclusion of the judgment.

B. The lower court’s sentence of unreasonable sentencing (one year of imprisonment, additional collection charge 45 million won) is too unreasonable.

2. Determination

A. We examine ex officio prior to the judgment on the grounds for appeal for ex officio determination.

According to the evidence duly adopted and examined by the lower court and the trial court, the Defendant was sentenced to one year and six months of imprisonment by fraud, etc. at the Daegu District Court on December 29, 201, and completed the execution of the sentence at the Daegu Prison on January 18, 2013. The crime of the lower court’s judgment was committed between May 201, 2015 and September 4, 2015, and thus, constitutes a repeated crime.

Therefore, the lower court’s judgment cannot be maintained as it erred by omitting the punishment, even though the lower court imposed a repeated offender’s aggravation in determining the Defendant’s punishment.

However, despite the above reasons for ex officio reversal, the defendant's assertion of misapprehension of legal principles is still subject to the judgment of this court, and this is examined below.

B. If a bribe is received as an intention to receive a bribe on the assertion of misapprehension of the legal principle, it was returned later.

Even if the establishment of the crime of bribery does not affect the establishment of the crime of bribery (Supreme Court Decision 86Do2021 delivered on December 23, 1986), and if a bank deposits money received as a bribe, the deposit constitutes a disposal act of the bribe, and thus the consignee thereafter returned the same amount of money to the receiver.

Even if this cannot be considered as the return of the bribe itself, in this case, the amount of the bribe should be collected from the consignee.