[1] Probative value of a recording tape recording the contents of conversation

[2] The case holding that it is admitted as evidence, in case where the defendant consented to the ice pension itself with the contents of the conversation with the defendant, but the defendant improved the quality of the recording tape and the sound recording tape and then released the contents of the rerecording and the sound recording tape with the contents of the rerecording as evidence, and it is proved that the contents of the conversation and the recording tape are consistent with the contents of the recording and the recording tape, and that the statement was made under particularly reliable circumstances, except for the part that it is extremely impossible to listen to the recording, and it is recognized that the statement was made under particularly reliable circumstances

[3] Criteria for determining the illegality of an investigation into a vessel

[4] Whether a necessary accomplice is subject to criminal liability for all the co-offenders (negative), and whether the crime of acceptance of bribe is established where a public official gives money and valuables to a public official with the intention to omit on a ship, and receives such money and valuables in relation to his/her duties (affirmative)

[5] The case holding that although the acceptance of a bribe by the defendant would be caused by the acts of the offering of a bribe by the donor, it is difficult to deem that the offering of a bribe was only intended to place the defendant on a ship and there was no intention to do so at all, and the fact that the offering of a bribe was the act of the offering of a bribeer, it cannot be a reason to exempt the defendant from liability

[1] Where a court conducts verification as to whether the contents of the recording document and the contents of the recording tape are identical to those of the defendant and the victim as evidence of facts charged, evidence is the contents of the recording tape itself. Among them, unless the defendant agrees that the contents of the recording tape can be used as evidence of the defendant's statement in addition to the provisions of Articles 311 and 312 of the Criminal Procedure Act, in order to use the recording tape as evidence of the defendant's statement in a preparatory hearing or during a public trial pursuant to the proviso of Article 313 (1) of the Criminal Procedure Act, it is proved that the contents of the defendant's statement recorded in the recording tape were recorded as evidence of the victim's statement, and that the statement was made under particularly reliable circumstances. The contents of the recording tape are hard to be signed or sealed by its nature, and if it is hard to prove the contents of the recording tape's statement in light of its intent or specific technology, it is hard to recognize it as evidence of the original or copy of the recording, etc. without being copied or copied from the original.

[2] In a case where the defendant's defense counsel acknowledged that the defendant's defense counsel was the defendant's voice and consented to the recording tape and the recording tape's sound recording as evidence after improving the sound quality of the recording tape and the recording tape's sound recording, but it was confirmed that the contents of the recording tape and the recording tape's sound recording are identical to the contents of the recording recorded in the Boscis, the case held that the defendant's defense counsel consented to the recording of the recording, as evidence, although the defendant's defense counsel confirmed that the recording was consistent with the contents of the recording in the Boscis, the recording tape and the recording tape's sound recording tape's statement as evidence, except for the part that it is extremely impossible to listen to, the statement recorded in the Boscis, the recording tape, and the recording tape's statement in the Boscis, the original copy of the recording tape, and it can be admitted as evidence in light of the contents of the recording and the contents of the conversation.

[3] A naval investigation that induces a person who does not have an original criminal intent to commit a crime by using a deceptive act or attack, etc. and arrests the criminal is illegal. In a specific case, whether it constitutes an illegal naval investigation shall be determined by comprehensively taking into account the type and nature of the crime in question, the status and role of the inducer, the background and method of inducing the inducer, the response of the inducer due to the inducer, the punishment history of the inducer, and the illegality of the inducing act itself. Therefore, if the inducer did not have a direct relation with the investigation agency, he merely instigated the inducer to commit a crime more repeatedly and repeatedly, and if the investigation agency cannot be deemed to have used a deceptive act or attack, it does not constitute an illegal naval investigation even if the induced caused the criminal intent of the inducer.

[4] The crime of offering of a bribe and the crime of acceptance of a bribe shall be deemed to be in a necessary accomplice relationship. However, the requisite accomplice is merely a need for the cooperation of many people in the crime under the law, and the establishment of such crime does not necessarily require the cooperation of the cooperation. Thus, even in a case where a public official borrowed the form of having been related to his/her duties with the intention to put him/her into a ship and received money from the public official with the intention to receive money and valuables in relation to his/her duties, if the public official received money and valuables in relation to his/her duties

[5] The case holding that although the acceptance of a bribe by the defendant would be caused by the acts of the offering of a bribe by the donor, it is difficult to deem that the offering of a bribe was only intended to place the defendant on a ship, and that there was no intention to do so, and that the circumstance that the offering of a bribeer's offering of a bribe cannot be a reason to exempt the defendant from liability

[1] Articles 311, 312, and 313(1) of the Criminal Procedure Act / [2] Articles 311, 312, and 313(1) of the Criminal Procedure Act / [3] Article 13 of the Criminal Act / [4] Articles 30, 129(1), and 133(1) of the Criminal Act / [5] Article 13 of the Criminal Act, Articles 129(1), and 133(1) of the Criminal Act

[1] Supreme Court Decision 2005Do2945 Decided December 23, 2005 (Gong2006Sang, 207) Supreme Court Decision 2006Do8869 Decided March 15, 2007 (Gong2007Sang, 585) / [3] Supreme Court Decision 2006Do2339 Decided July 12, 2007 (Gong2007Ha, 1401), Supreme Court Decision 2007Do7680 Decided November 29, 2007 / [4] Supreme Court Decision 87Do1698 Decided December 222, 1987; Supreme Court Decision 2006Do2339 Decided July 12, 2007 (Gong2007Ha, 1401)

Defendant

Defendant

Law Firm Barun et al.

Gwangju High Court Decision 2007No234 decided Nov. 29, 2007

The appeal is dismissed. 90 days out of detention days after the appeal shall be included in the original sentence.

1. As to the admissibility of Nonindicted 1’s legal statement, etc.

In principle, a protocol containing a full-time statement or a full-time statement shall not be admissible in accordance with the provisions of Article 310-2 of the Criminal Procedure Act. However, a full-time statement shall not be admissible in accordance with the provisions of Article 316(2) of the former Criminal Procedure Act (amended by Act No. 8496 of Jun. 1, 2007; hereinafter the same shall apply) only when the person making the original statement is unable to make a statement due to death, illness, residence in a foreign country, or any other reason, and its statement is exceptionally admissible only when it is made under particularly reliable circumstances. A protocol containing a full-time statement shall be admissible in cases where its admissibility can be recognized in accordance with the provisions of Article 312 or 314 of the former Criminal Procedure Act, as well as in cases where it satisfies the requirements of Article 316(2) of the former Criminal Procedure Act (see Supreme Court Decisions 201Do3081, Jun. 25, 2004; 203Do4).

According to the records, among the "Non-Indicted 1's first instance court's statement" and "Non-Indicted 1's statement" and "non-Indicted 1's statement in the first instance court's statement in the Gwangju District Court's 2007 Godan493 case's first instance court's statement" adopted as evidence and "non-Indicted 2's statement", the part that the defendant sent to Non-Indicted 3 through Non-Indicted 2 and called "non-Indicted 3 as "the check will be borne" is inadmissible as evidence in principle in accordance with Article 310-2 of the Criminal Procedure Act. However, according to the reasoning of the judgment below, it is difficult to conclude that the court below adopted the above part of Non-Indicted 1's statement and its statement as evidence of guilt. Even if the court below adopted the above part as evidence of guilt even if the defendant excluded the above part of the criminal facts in violation of the Act on the Aggravated Punishment, etc. due to the bribery of Specific Crimes, it can be sufficiently found guilty by the remaining evidence duly adopted by the court below. Therefore, we cannot accept the ground of appeal.

2. As to the admissibility of the suspect interrogation protocol, etc. against Nonindicted 3 prepared by prosecution investigators

According to the records, the court below found the defendant guilty of the facts charged in this case by citing the evidence adopted by the court of first instance, and found the defendant guilty of the facts charged in this case. The court of first instance found the defendant guilty of the defendant's testimony, "written statement of the defendant and written statement of the self-denunciation of the defendant", "written statement by the prosecutor's office against the non-indicted 4 and 5", "written statement by the prosecutor's office", "written statement of deposit transaction, etc.", "each investigation report", "10,00 won on the seized Bank of Korea notes" and "written statement of the suspect non-indicted 3's interrogation of the prosecutor's investigator's investigation" and "written statement of the suspect non-indicted 3's recording and video recording" as evidence, and it can be known that the court of first instance and the judgment of the court of first instance did not indicate it as evidence of guilt. Thus, the argument in the grounds of appeal on this point cannot be accepted without further review.

3. As to the admissibility of the result of verification of Bosice, etc.

Where a court verifies the contents of a recording document concerning conversations between the defendant and the victim as evidence of facts charged and conducted verification as to whether the contents of the recording document and the contents of the recording tape are identical, evidence is itself the contents of the recording tape. Of that, unless the defendant agrees that the contents of the recording tape can be used as evidence because they are different from those of the defendant's statement in addition to Articles 311 and 312 of the Criminal Procedure Act, the defendant's contents of the recording tape can be used as evidence, in order to use the recording tape as evidence, a copy of the recording tape's statement made by the defendant in a preparatory hearing or during public trial pursuant to the proviso to Article 313 (1) of the Criminal Procedure Act shall be proved that the contents of the recording tape were recorded as stated by the defendant and it was made under particularly reliable circumstances (see Supreme Court Decisions 201Do3106, Oct. 9, 201; 2001Do3106, May 27, 2004).

However, according to the records, the court of first instance affirmed the conversations between the non-indicted 1 and the defendant, and the recorded tape is the original of the recorded tape. The recorded tape is the duplicate of the recorded tape, which improved the sound quality of the recorded tape, and then re-recording the recorded tape. The defendant's defense counsel recognized the defendant's voice as a result of hearing the recorded tape itself during the fifth day of the court of first instance and consented to the examination of the recorded tape as evidence. The defendant's defense counsel consented to the re-recording tape, time-recording tape and recording tape's recording contents as evidence. The defendant's defense counsel's consent to the re-recording tape, time-recording tape and recording tape's recording contents as evidence is consistent with the contents of the recorded tape's conversation during the sixth day of the court of first instance. The defendant's consent to the re-recording tape's statement and the recorded tape's statement that conforms to the contents of the recorded tape's statement to the evidence of the defendant's statement that the recorded recording tape's statement and the recorded tape's statement as evidence.

4. As to the assertion of violation of the evidence law

After compiling the adopted evidence, the court below acknowledged the following facts as stated in its holding. The court below accepted the following facts, namely, that the check was returned in cash on the day, and delivered 60 million won to the defendant's wife, and stated that the non-indicted 1 and the non-indicted 3, who did not attempt to return the cash directly face with the defendant without any mentioning any attempt to do so, shall not go through a check. The court below's determination that the defendant should not be made in cash, and that the non-indicted 1 and the non-indicted 3 should receive KRW 100 million in cash again within one month after the delivery of the cash, and that the non-indicted 1 and the non-indicted 3 should receive KRW 100 million in cash on the premise that the cash was properly received from the non-indicted 1 and the non-indicted 3 for the payment, and that the court below's determination that the defendant should not be justified or should not be justified in light of the above facts alleged in the grounds for appeal and the records.

5. As to the assertion of the vessel investigation

In the original case, it is illegal for an investigative agency to arrest a criminal by using a trick or attack against a person who has no criminal intent (see, e.g., Supreme Court Decision 2005Do1247, Oct. 28, 2005). The issue of whether a person constitutes an illegal naval investigation in a specific case shall be determined by taking into account the type and nature of the relevant crime, the status and role of the inducer, the background and method of inducing the inducer, the response of the inducer due to the inducement, the punishment power of the induced, and the illegality of the inducing act itself, etc. Therefore, if the inducer who did not directly have direct relations with the investigative agency only instigated the induced person to commit a crime more repeatedly and repeatedly, and if the investigative agency cannot be deemed to have used a trick or trick, it does not constitute an illegal naval investigation (see, e.g., Supreme Court Decision 2005Do1247, Oct. 28, 2005).

Examining the following circumstances revealed in its recognition, i.e., Nonindicted 1 visited the Defendant on January 18, 2007 and urged him to pay for a bribe, the lower court: (a) deemed that there was any promise between Nonindicted 6 and Nonindicted 1; (b) the contact between Nonindicted 1 and Nonindicted 6 began on December 4, 2006, and continued closely each time until January 18, 2007; and (c) deemed that the Defendant’s promise referred to in the currency of January 18, 2007 was prior to the delivery of the bribe to Nonindicted 6, and that there was no error of law by misapprehending the legal doctrine as to Nonindicted 1 and Nonindicted 6’s delivery of a bribe to Nonindicted 3 without waiting the Defendant to return the bribe to the prosecution in light of the legal principles as seen earlier; and (d) Nonindicted 1 and Nonindicted 6’s delivery of a message to Nonindicted 1, who attempted to take part in the instant case without waiting to return the bribe to the prosecution.

6. As to the assertion of impossible attempts, etc.

According to the evidence duly admitted by the court below, Non-Indicted 3 has been making efforts from the former head of the Gun to receive the instant construction work, there was an end to the defendant's effort to receive the instant construction work in the election campaign process of the defendant going out of the election for the Young-Gun on May 31, 2006, and made a solicitation on July 1, 2006 to allow the defendant to receive the instant construction work together with Non-Indicted 1 as soon as he was appointed to the head of the Gun. Meanwhile, Non-Indicted 1 was closely contacted with Non-Indicted 6 who well knows a specific person behind the instant case from December 4, 2006, and continued to do so by the time of currency until January 18, 207. In the case of Non-Indicted 3, Non-Indicted 3 was made efforts to take the instant construction from the beginning of the election campaign to the beginning of the election campaign, and it was difficult to view Non-Indicted 1's rear or his own promise to be made by the defendant 16.

In addition, the crime of offering of a bribe and the crime of acceptance of a bribe shall be deemed to be in the necessary accomplice relationship, but the necessary accomplice is merely a need for the cooperation of many people in the crime by law, and the establishment of such crime requires the joint cooperation, and the cooperation is not necessarily required (see, e.g., Supreme Court Decisions 87Do1699, Dec. 22, 1987; 2005Do2458, Jan. 12, 2006; 2005Do2458, Jan. 12, 2006). In addition, the crime of offering a bribe and the crime of acceptance of a bribe shall be deemed to be established if a public official receives money from his/her public official with the intent to receive money in connection with his/her duties even if he/she provided it to the public official.

Therefore, even if the court below acknowledged that the offering of a bribe in this case by Nonindicted 3 and Nonindicted 1 was made in order to put the defendant into a vessel, it is just and acceptable to find the defendant guilty of the charge of bribery to the defendant, and there is no error in the misapprehension of legal principles as alleged in the grounds of appeal.

7. Conclusion

Therefore, the appeal shall be dismissed and part of the detention days after the appeal shall be included in the original sentence. It is so decided as per Disposition by the assent of all participating Justices.

Justices Kim Ji-hyung (Presiding Justice)