[1] Criteria for determining whether the suspect interrogation protocol prepared by the prosecutor is voluntary

[2] The legitimacy of an aggravated punishment of concurrent crimes, such as official approval and alteration, which are in a mutually competitive relationship with each other after the acceptance of a bribe (negative)

[3] The case holding that where there is a difference in the scope of punishment due to a mistake in the evaluation of the number of crimes, there is an error of law by misunderstanding the legal principles as to the number of crimes

[1] Where the existence of the defendant's statement at the prosecutor's office is disputed, the court shall not be subject to the method of examination of evidence or the restriction on the admissibility of evidence in accordance with specific cases, but shall decide whether the defendant's statement at the discretion of free proof by a reasonable method in comprehensive consideration

[2] In the case of the unlawful action after the acceptance of the bribe under Article 131 (1) of the Criminal Code, in a case where the unlawful act committed by a public official after the acceptance satisfies the requirements of separate crimes whose legal interest is different, such as the crime of official acceptance, alteration of the acceptance, and the crime of unlawful action after the acceptance of the bribe, in addition to the crime of unlawful action after the acceptance of the bribe, the crime of official acceptance, alteration, and the crime of unlawful action after the acceptance of the bribe is established, and these crimes and the crime of unlawful action after the acceptance of the bribe are in an ordinary concurrent relationship respectively. Thus, in a case where the crime of official acceptance alteration and the crime of unlawful action after the acceptance of the bribe are in an ordinary concurrent relation, even though there is a substantive concurrent relation between the crime of unlawful action after the acceptance of the bribe and the crime of unlawful action after the acceptance of the bribe, it is sufficient to impose the punishment for the most severe crime compared to the crime

[3] The case holding that where there is a difference in the scope of punishment due to a mistake in the evaluation of the number of crimes, there is an error of law by misunderstanding the legal principles as to the number of crimes

[1] Article 308 of the Criminal Procedure Act / [2] Articles 37, 40, 131 (1), 225, and 229 of the Criminal Act / [3] Article 383 subparagraph 1 of the Criminal Procedure Act

[1] Supreme Court Decision 97Do2084 delivered on November 25, 1997 (Gong1998Sang, 175), Supreme Court Decision 98Do159 delivered on March 13, 1998 (Gong1998Sang, 1116), Supreme Court Decision 98Do2890 delivered on December 22, 1998 (Gong199Sang, 275) / [2] Supreme Court Decision 83Do1378 delivered on July 26, 1983 (Gong1983, 1380)

Defendant

Defendant

Attorney Lee Yong-hoon

Busan High Court Decision 99No128 delivered on March 2, 2000

The judgment below is reversed, and the case is remanded to Busan High Court.

1. The summary of the facts charged in this case is that the defendant is engaged in the affairs of division of land, change of land category, merger, and issuance of land use planning confirmation board in the city of the construction city of the Gu office. A. From September 1995, the above public service center of the first instance, which was an employee of the certified architect office, the boundary line of multi-household house in the same Gu is 8m or 90cm away from the 8m urban planning road and 90cm away from the above multi-household house construction. As such, the above multi-household house's boundary line and urban planning line are consistent with the above lot number line, and the public official was issued a bribe in this case and received a bribe in this case from the above public service center of the 19:00,000,000 won, and the above public official was also found to have been engaged in the affairs of the above public service center of the 19:0,000, and the above public official was also found to have changed the above public service center's boundary line of the above 9000,00 m.

2. As to the assertion of mistake of fact

A. As to the defendant's confession Voluntaryness

In a case where the existence of the defendant's statement at the prosecutor's office is disputed, the court shall decide whether the defendant's statement is voluntary by means of free evaluation of evidence without being subject to the method of examination of evidence or the restriction on the admissibility of evidence according to a specific case, and the records show that the defendant, according to the court of first instance, did not sign the protocol of examination of the defendant prepared by the prosecutor, and considering the progress that led to the confession of the facts of this case, the contents of the protocol, the academic background and intelligence of the defendant, etc., it cannot be seen that the defendant made a confession different from the fact by coercion, reply, etc. at the prosecutor's office as alleged in the grounds of appeal. Thus, the argument in the grounds of

B. According to the evidence of the court below and the court of first instance maintained by the court below, the defendant continued to make confessions with the same contents in the court of first instance from the date of the first investigation to the date of the facts charged, and it is objectively reasonable in the contents of the confessions, such as making a detailed statement about the method of altering the drawing of this case, and there is no trace to deem otherwise that there is a situation to have reasonable doubts in the motive or process of making confessions. Thus, according to the records, the court below's measure that the defendant used the above evidence as evidence under the premise that the statement made before the public prosecutor conforms to the truth and credibility, it is reasonable in the court below's determination that the defendant's act was committed by altering the urban planning of this case after receiving a bribe from the Co-defendant of the court of first instance and exercising it, and it was sufficiently recognized that the defendant did not receive the above facts and city planning of the above defendant promptly and there was no error in the misapprehension of the facts as to the defendant's duty to accept the bribe of this case from the court of first instance to 96 months.

3. As to the assertion of misapprehension of legal principle

According to the reasoning of the first instance judgment maintained by the court below, Articles 131(1) and 129(1) of the Criminal Act with respect to the defendant's illegal action after acceptance of bribery, and Articles 225 and 229 of the Criminal Act with respect to the public offering, alteration, and exercise of the same, each of the above crimes (including the crime of acceptance of bribe for a non-indicted 1 and a non-indicted 1, 1996) constitutes concurrent crimes under the former part of Article 37 of the Criminal Act, and the punishment against the defendant is determined by adding the punishment to the punishment for the illegal action after the acceptance of bribery for which the punishment is most severe.

However, in the case of the unlawful action after the acceptance of the bribe under Article 131 (1) of the Criminal Act, in case where the unlawful act committed by a public official after the acceptance of the bribe satisfies the requirements of separate crimes whose legal interest is different from the one of the unlawful actions after the acceptance of the bribe, it shall be established separately in addition to the unlawful action after the acceptance of the bribe, and the crime of the unlawful action after the acceptance of the bribe and the crime of the unlawful action after the acceptance of the bribe are in an ordinary concurrent relation respectively. Thus, in case where the crime of the alteration of the public tender and the crime of the same exercise are in an ordinary concurrent relation with the crime of the unlawful action after the acceptance of the bribe, the crime of the alteration of the public tender and the crime of the same exercise are satisfied, even though there is a substantive concurrent relation between the crime of the unlawful action after the acceptance of the bribe, it shall be sufficient if the public official is imposed on the most severe crime compared to the crime of the unlawful action after the acceptance of the bribe.

In addition, even if the crime of acceptance of bribe is established separately from each of the above crimes, in light of the fact that the statutory punishment is imprisonment for not more than five years or suspension of qualification for not more than ten years, each of the statutory punishments (a ten-year imprisonment) and the statutory punishment (a more than one-year imprisonment) for the crime of bribery and the punishment (a more than one-year imprisonment), and the case of aggravated punishment for concurrent crimes after acceptance of bribery (Article 38(1)2 of the Criminal Act), it is obvious that the scope of punishment would vary if the case is appraised as stated in the judgment of the court below, and thus, the misapprehension of the legal principle as to the number of such crimes would affect the judgment.

Therefore, the judgment of the court below that maintained the first instance court which held that both the crime of illegal action after the acceptance of the bribe, the crime of public offering and alteration, and the crime of the same exercise as substantive concurrent crimes and aggravated concurrent crimes, is erroneous in the misapprehension of legal principles as to the number of such crimes, which affected the conclusion of the judgment. Thus, the ground of appeal pointing this out

4. Therefore, of the judgment of the court below against the defendant, the illegal disposition and official map alteration after acceptance of the bribery and the part of the exercise of the same shall be reversed in an unlawful manner, and since the remaining parts of the judgment of the court below against the defendant are concurrent crimes under the former part of Article 37 of the Criminal Act, the whole judgment of the court below shall

5. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Son Ji-yol (Presiding Justice)