Defendant 1 and one other

The first instance judgment: the Defendants and the Prosecutor (Defendant 1)/ the second instance judgment; Defendant 1

Lee Jong-sik (Public Prosecution), Ho-ho Promotion (Public Prosecution), Kim Yong-ju (Public Trial)

Law Firm Gyeongsung et al.

1. Busan District Court Decision 201Gohap224, 201Gohap6, 2012Gohap8-1 (Joint) decided March 30, 2012, the Busan District Court Decision 201Gohap266-1 (Joint) decided September 7, 2012, and 2. Ulsan District Court Decision 2012Gohap266-1 (Separation) decided September 7, 2012

Of the judgment of the first instance, the part on Defendant 1 (Defendant of the judgment of the Supreme Court) and the judgment of the second instance is reversed.

Defendant 1 shall be punished by imprisonment for 8 years and a fine of 120,000,000 won.

When Defendant 1 fails to pay the above fine, the above defendant shall be confined in a workhouse for the period calculated by converting KRW 200,000 into one day.

424,050,000 won shall be additionally collected from Defendant 1.

Defendant 2’s appeal is dismissed.

1. Summary of grounds for appeal;

A. Error of fact (as to the judgment of the court of first instance on the defendant 1 and the defendant)

In the judgment of the court of first instance, the Defendant borrowed money from business operators, and in particular, the amount of KRW 55 million that the representative of ○○ Industry (the Nonindicted Party in the judgment of the Supreme Court) remitted to the Defendant around April 201 is the money that the Defendant borrowed from Nonindicted Party 1.

B. Unreasonable sentencing

1) Defendant 1

The sentencing of each lower court (the first instance judgment: 6 years of imprisonment, 2 years of imprisonment: 3 years and 6 months of imprisonment) is too unreasonable. In particular, it is unlawful that the lower court omitted its judgment in light of the fact that the Defendant’s punishment may be mitigated or exempted under the so-called Anti-Corruption and Civil Rights Commission Act, such as the Act on the Prevention of Corruption and the Establishment and Management of the Anti-Corruption and Civil Rights Commission, in cooperation with investigation by having the Defendant informed the investigation agency of corruption

2) Defendant 2 (Defendant 1’s judgment)

The sentencing of the first instance court (the sentencing of a fine of 1.5 million won) is too unreasonable.

3) The Prosecutor (Defendant 1)

The sentencing sentenced by the court below to Defendant 1 is too unfortunate and unfair.

2. Determination

A. Determination on Defendant 1’s grounds of appeal

1) Ex officio determination

The defendant's grounds for appeal are examined ex officio prior to the judgment.

㈎ 제1, 2 원심법원은 피고인에 대하여 각각 따로 심리를 마친 후 피고인을 각 형에 처하는 판결을 선고하였고, 피고인은 위 각 판결에 대하여, 검사는 제1 원심판결에 대하여 각 항소를 제기하였으며, 이 법원은 위 두 항소사건을 병합하여 심리하기로 결정하였는바, 피고인에 대한 원심판결들의 각 죄는 형법 제37조 전단의 경합범관계에 있어 형법 제38조 제1항 에 의하여 경합범가중을 한 형기 범위 내에서 단일한 선고형으로 처단하여야 할 것이므로 제1 원심판결 중 피고인에 대한 부분과 제2 원심판결은 이 점에서 더 이상 유지될 수 없게 되었다.

㈏ 또한 피고인은 2012. 10. 24. 부산지방법원에서 도주죄로 징역 6월에 집행유예 2년을 선고받아 2012. 11. 1. 그 판결이 확정되었고, 이와 같이 판결이 확정된 죄와 원심판결들의 각 죄는 형법 제37조 후단의 경합범 관계에 있으므로 형법 제39조 제1항 에 따라 동시에 판결할 경우와 형평을 고려하고 형의 감경 또는 면제 여부까지 검토한 후에 형을 정하여야 한다. 따라서 이와 같은 조치를 취하지 못한 피고인에 대한 원심판결들은 결과적으로 파기를 면할 수 없게 되었다.

2) Determination of misunderstanding of facts

However, the defendant's assertion of misunderstanding of facts is still subject to the judgment of this court, even if there is a ground for ex officio reversal.

Comprehensively taking account of the evidence duly admitted and examined by the court below, the defendant's assertion that he received money from the court of first instance as a bribe in relation to his duties or with respect to the duties of officers and employees of public enterprises, and thus, he cannot accept the defendant's assertion that he borrowed money with no interest and indefinite interest.

Meanwhile, the defendant's defense counsel argues to the effect that the defendant's act of informing the defendant of corruption, such as delivery to an investigation agency, constitutes legal grounds for reduction or exemption under the Anti-Corruption Act. However, it is difficult to view the defendant's above act as a ground for reduction or exemption of liability under the Anti-Corruption Act, and even if not, the above provision of the Anti-Corruption Act is a ground for voluntary reduction or exemption of punishment. Thus, the court below's failure to make a judgment on such

B. Determination on Defendant 2’s assertion of unreasonable sentencing

A relatively small amount of money that the Defendant provided to Defendant 1 is KRW 3 million, and there are favorable circumstances for the Defendant, such as the confession of the instant crime and the pening of his mistake.

On the other hand, the defendant's crime of this case is deemed to be too unreasonable in light of the defendant's age, character and conduct, motive for committing the crime, circumstances after committing the crime, etc., even if considering all the circumstances alleged in the grounds of appeal by the defendant, since the defendant's punishment of the court below is deemed to be too unreasonable, the defendant's allegation in the grounds of appeal is without merit.

3. Conclusion

Therefore, Defendant 2’s appeal against the judgment of the court of first instance is dismissed under Article 364(4) of the Criminal Procedure Act on the ground that it is without merit, and all of the judgment of the court of first instance on Defendant 1 and the judgment of the court of second instance on the ground of ex officio reversal as seen above. Thus, the judgment of the court of first instance on Defendant 1 among the judgment of the court of first instance and the judgment of the court of second instance is reversed under Article 364(2) of the Criminal Procedure Act without examining the allegation of unfair sentencing by Defendant 1

The summary of Defendant 1’s criminal facts and their evidence acknowledged by this court is as follows: (a) the first head of each original judgment’s criminal facts added “the Defendant was sentenced to two years of suspended execution on October 24, 201 to six months of imprisonment with prison labor at the Busan District Court for the crime of escape, and the judgment became final and conclusive on November 1, 2012,” and “in accordance with Article 2011 of the Ministry of Strategy and Finance Notice No. 2011 of Jan. 24, 201” to the effect that “the Ministry of Strategy and Finance Notice No. 2011 of Jan. 31, 201,” and it is identical to each corresponding column of the lower judgment, thereby citing it as it is in accordance with Article 369 of the Criminal Procedure Act.

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

○ Each point of No. 1 of the judgment of the court of first instance, and each point of No. 2-A of the judgment of the court of first instance: Article 357(1) of the Criminal Act (as a whole, several times from the same person with additional evidence)

Article 2(1)2 of the Act on the Aggravated Punishment, etc. of Specific Crimes, Article 129(1) of the Criminal Act, Article 53 of the Act on the Management of Public Institutions

Article 129(1) of the Criminal Act, Article 53 of the Act on the Management of Public Institutions (Each Selection of Imprisonment)

1. Imposition of fines concurrently;

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

1. Handling concurrent crimes;

The latter part of Article 37 and Article 39(1) of the Criminal Act

1. Aggravation for concurrent crimes;

Article 37 (former part of Article 37, Article 38 (1) 2, and Article 50 of the Criminal Act (Aggravation of concurrent Crimes for Punishment of Specific Crimes, etc. of Specific Crimes (Bribery) provided for in the first instance court which has the largest sentence of punishment and punishment)

1. Detention in a workhouse;

Articles 70 and 69(2) of the Criminal Act

1. Additional collection:

The latter part of Article 134 and the latter part of Article 357(3) of the Criminal Act

The defendant, who is in charge of the supply, inspection, etc. of goods required at a second power plant of the High Atomic Energy Headquarters, a national key facility, was aware that he was in charge of the business, and acquired or received a bribe from a large number of enterprises over several years using his position. The collection of the total amount received as a result of the crime in this case exceeds 40 million won, and exceeds 50 million won, and the collection of money exceeding 50 million won is made two times. In light of the contents, means, and results, etc. of the crime in this case, as well as damage to the general trust that has believed high safety, etc. of nuclear power plants, it is necessary to punish the defendant with strict punishment corresponding thereto.

On the other hand, after the commencement of the investigation of this case, the defendant actively cooperated in the investigation by informing an investigative agency of the corruption, such as delivery, etc., and the defendant is making a confession as a substitute for the crime of this case and reflects his mistake in depth, and other circumstances, such as the defendant's age, character and behavior, environment, criminal record relationship, motive, circumstance, means and method of each crime of this case, the method and consequence thereof, etc., shall be determined as per the order, taking into consideration all the circumstances that are conditions for

Judges Kim Jong-cheon (Presiding Judge)