Defendant 1 and one other

Defendant 1 and Prosecutor

Deathoe, Kim Jong-soo (Public prosecution), Lee Ho-ho, Lee Jong-chul, Lee Lee

Law Firm Barun and three others

Seoul Central District Court Decision 2015Gohap4, 6 (Consolidated), 159 (Consolidated) Decided October 15, 2015

The part of the judgment of the court below against Defendant 1 (including the part of the acquittal in the grounds) shall be reversed.

Defendant 1 shall be punished by imprisonment for eight months.

However, the execution of the above punishment against Defendant 1 shall be suspended for two years from the date this judgment becomes final and conclusive.

Of the facts charged against Defendant 1, the charge of acceptance of bribe is acquitted.

The prosecutor's appeal against the Defendants is dismissed.

1. Summary of grounds for appeal;

A. Defendant 1

(The supplemental appellate brief that is filed after the deadline for submitting the appellate brief shall be considered to the extent that it supplements the grounds for appeal).

1) misunderstanding of facts and misapprehension of legal principles

A) The part concerning the disclosure of public duties related to the documents related to the VIP trends (Nonindicted 1) trends, such as the replacement theory of the chief secretary of the Blue Office, etc. (hereinafter “documents related to Nonparty 1’s trend”).

Non-Indicted 1’s delivery of Non-Indicted 1’s trend documents to Non-Indicted 2 via Non-Indicted 3. The content of the above documents does not constitute a secret for official duties. If the above documents are presidential records, they may be disclosed to the public pursuant to Article 16 of the Presidential Records Act, and thus, the delivery to Non-Indicted 2 cannot be punished as

B) Part on the violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (Bribery) related to six acceptances

The case of advice related to the investigation of the entertainment tavern △△△△, which was already conducted, and the case of advice related to the investigation of the entertainment tavern △△△△△ in progress, received three Gabs and two pelbs and 2 pelbs and pelbs in April 2007 from Nonindicted 4, as a consideration for advice related to the investigation of the entertainment tavern △△△△△ in progress. Therefore, Nonindicted 5’s pelbs and received two pelbs and 4 pelbs from Nonindicted 6 around May 2007, and around June through July 2007.

2) Unreasonable sentencing

Defendant 1 contributed to the State while serving as a police official for a period of not less than two months without criminal punishment or disciplinary action. The legal interests infringed upon by Nonindicted 2’s delivery of Nonindicted 1’s trend documents to Nonindicted 2 are not significant. Considering these circumstances, the lower court’s imprisonment (seven years of imprisonment) is too unreasonable.

(b) Prosecutors;

1) misunderstanding of facts and misapprehension of legal principles

A) Regarding the Defendants

(i)Violation of the Presidential Records Management Act

The attached list of crimes (i) all documents mentioned in the attached list were delivered to Nonindicted 2 through Nonindicted 3 as they were in the form of the final text.

There is no reason to distinguish documents without any difference from documents printed out from the same document file into the original and copy or additional output, depending on whether the documents are reported to the final receiving authority, and there is no reason to distinguish them into the original and copy or additional output. In actual transfer, multiple copies of documents created before the approval process are transferred to the competent record repository without registration. If electronic documents are printed out and reproduced, and only documents reported to the final reporting authority among outputs are presidential records, it goes against the legislative intent of the Presidential Records Management Act (hereinafter “Presidential Records Act”) for the purpose of protecting Presidential records.

For such reasons, the document itself reported to the reporting authority, as well as the document additionally printed out or copied the same contents, shall be deemed as the original of the Presidential records under the Presidential Records Act. Even if not, additional output or copy also constitutes the Presidential records.

【Disclosure of Official Secrets

The notification of the contents of each document listed in the [Attachment] 1, 2, 3, 5, and 10 Nos. 1, 2, 3, and 5 through 10, which includes the fact of the misconduct of the people surrounding the presidential relatives, exceeds the limit of the inspection work under the organization of the presidential office. The contents of the documents include not only the contents related to the privacy of a third party, but also include the contents related to the life of a third party, but also are sufficient to give a verbal warning, the leakage of the documents as they are inside the audience without the consent of the presidential secretary or the presidential secretary

B) As to Defendant 1

(i)Faccout portion

Defendant 1 knew that the documents secured by Nonindicted 7 were copied by Nonindicted 7’s possession in and outside of the audience, Defendant 1, despite being aware of the fact that the documents kept by Nonindicted 7 were stolen and distributed from his own Cheongdaedae-gu’s armed conflict.

【Public Document Concealment Parts

Documents written in the annexed crime list / ar are not documents written individually by Defendant 1, but all documents kept in the position of the administrative officer belonging to the office of ○○○○ secretary. Defendant 1, who is only an administrative officer, takes the office of the administrative officer, constitutes the concealment of documents for public use.

Article 55(1) of the Act on the Aggravated Punishment, etc. of Specific Crimes (Bribery) concerning the receipt of KRW 50 million

There is no possibility that Nonindicted 6, who stated the fact of the grant in cash, made a mistake or a false statement only in the fact of the grant in cash of KRW 50 million. It is also reasonable in light of the empirical rule to transfer Nonindicted 6’s first cash to the grant in the Alley.

C) As to Defendant 2

The Non-Indicted 1’s trend was in interest with Defendant 2, and Defendant 2 took part in the process of the preparation and instructed Defendant 1 to deliver the documents to Defendant 1.

2) On the grounds of unfair sentencing (defendant 1)

The amount of bribe received is large. The nature of the crime is inferior, such as imposing serial numbers on the Alley, etc. After the acceptance of a bribe. The production of the intelligence against Non-Indicted 5 after the acceptance of a bribe has reached an actual illegal disposal. It is not consistent and inconsistent with the vindication. Considering these circumstances, the lower court’s punishment is too unreshed and unfair.

2. Determination:

A. Judgment on the misconception of facts and misapprehension of legal principles by Defendant 1

1) Determination on the leakage of confidential information related to Nonindicted 4’s trends Nos. 4 and 1’s official duties

A) Whether Defendant 1 delivered Nonindicted 1’s trend documents to Nonindicted 2 via Nonindicted 3

In light of the following circumstances acknowledged by the evidence duly adopted by the court below and the examination of evidence, Non-Indicted 3 made an inconsistent statement as to whether he received the Non-Indicted 1’s trend from the prosecutor’s office, but clearly stated in the court below that he received the document in question from Defendant 1, and Non-Indicted 2 also made a statement that he received the document in question through Non-Indicted 3; Non-Indicted 3 or Non-Indicted 2 also made it difficult for Non-Indicted 2 to present the method of obtaining the document by means other than Defendant 1; and Non-Indicted 3 or Non-Indicted 2’s search and seizure of the computer used by Defendant 1 and seizure of the document was not discovered, the court below did not err by misapprehending the legal principles regarding the facts that it delivered Non-Indicted 1’s trend to Non-Indicted 3, which contains the same contents as the annexed crime list No. 4.

B) Whether the delivery of the above contents constitutes a divulgence of official secrets

(i) Whether the case constitutes a public duty secret

"Official secrets pursuant to Acts and subordinate statutes" under Article 127 of the Criminal Act does not necessarily include matters defined as confidential under Acts and subordinate statutes or specified as confidential information, and includes matters of considerable benefits to which the government, public offices, or citizens are not disclosed from an objective and general point of view, as well as matters classified as confidential information according to political, military, diplomatic, economic, and social needs, but also include matters of considerable benefits that are not known to the public from an objective and general point of view, but should be recognized as having substantial value of protection. The purpose of this crime is to protect the interests dangerous by infringement of the duty of confidentiality of public officials, i.e., to protect the function of the country threatened by leakage of secrets (see Supreme Court Decision 2010Do14734, Mar. 15,

The contents contained in this document are as follows: “Non-Party 1, as a member of the so-called branch of a branch of a branch of a branch of a branch of a branch of a branch of a branch of a branch of a branch of a branch of a branch of a branch of a branch of a branch of a branch of a branch of a branch of a branch of a branch of a branch of a branch of a branch of a branch of a branch of a branch of a branch of a branch of a branch of a branch of a government, and presents opinions and opinions thereon. Non-Party 1, upon reporting the internal situation and the trend of the government’s personnel from the inside and outside of the branch of a branch of a branch of a government, presented his opinion and ordered him to spread information.” This is a speech and behavior that he/she may have influence on his/her own by the chief of a branch of a central office or the president, and

However, the above facts may lead to at least an inspection of the internal personnel in the Cheongdae-gu Office, and even if they are extremely certain without verifying the authenticity thereof, if they are externally known to the outside that they confirmed and investigated the truth in the Cheongdae-gu Office of ○○○○○○○○○○○○’s secretary office, they may have an impact on the prevention and inspection activities of the misconduct in the Cheongdae-gu Office and the Cheongdae-gu Office. In addition, it may have a serious impact on the fairness and reliability of the normal performance of duties of the Cheongdae-gu Office and the internal personnel mentioned in the above documents, and may have a heavy burden on the national administration, and thus, the fact that the ○○○○○○○○ Office collected and reported information about the above contents contained in the above trend of Non-Indicted 1’s indictment constitutes a secret for official duties as a matter of considerable interest not being known to the outside.

Therefore, Defendant 1, an administrative secretary of the ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○’s act of

Although the judgment of the court below on this part is somewhat insufficient in its detailed statement, there is no error of law in the misapprehension of legal principles in determining that the court below collected related intelligence in relation to the contents of the above documents by ○○○○ secretary office.

Whether the illegality of leakage in accordance with the principle of disclosure of the Presidential records is eliminated

The provisions of the main sentence of Article 16 (1) of the Presidential Records Act are to enhance the transparency and accountability of the state administration through the disclosure of Presidential records.

However, according to Article 9(1)1 of the Official Information Disclosure Act, Presidential records classified as confidential while being classified as a process of classifying whether or not to disclose them when transferring Presidential records in paragraph 2 of the same Article can be information subject to non-disclosure under the same Act.

In full view of the above provisions of the Presidential Records Act, the Act on the Disclosure of Information by Public Institutions, and the purport of Article 127 of the Criminal Act punishing leakage of secrets on official duties, an act falling under the divulgence of secrets on official duties under Article 127 of the Criminal Act related to Presidential records cannot be deemed as falling under the illegality by the principle of disclosure of Presidential records under the main sentence of Article 16(1) of the Presidential Records Act

Therefore, this part of Defendant 1’s assertion is without merit.

2) Determination on the violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (Bribery) related to six giving and receiving thaldbs

A) The judgment of the court below on the repair of pelbs received

The lower court consistently stated that: (a) Nonindicted 6 consistently stated that “ Nonindicted 6 delivered two or more lanes 4 or 5 dubs.”; (b) insofar as the Nonindicted 6’s statement on the delivery of dubs is consistent with objective facts, the Nonindicted 6’s statement on the number of dubs also appears to have no possibility of false intervention; and (c) Nonindicted 6’s statement on the number of dubs delivered from a third party in specifying the number of dubs issued by Nonindicted 6 appears to have no room for false intervention; and (d) Nonindicted 6 specified the number of dubs delivered in a situation in which it is impossible to expect that the dubs would have been discovered from Defendant 1’s loan; and (c) even after the number of dubs in which a series of damaged dubs was discovered, Defendant 1 stated that “The number of dubs delivered two or more times is four or more.”

B) Determination of proper deliberation on the repair of pelbs received

According to the records, it can be recognized that Defendant 1 received a brid from Nonindicted 6 under the same name as the facts charged.

However, considering the following circumstances admitted by the record, it is difficult to view that the evidence submitted by the prosecutor alone is sufficient to prove that Defendant 1 received four times the number of duds, which he received from Nonindicted 6, and six duds together, to the extent that it is beyond reasonable doubt.

(1) On December 15, 2014, Nonindicted 6 appeared at the Seoul Central District Prosecutor’s Office and stated in the first statement on December 15, 2014, the first statement stating, “The place where Nonindicted 6 purchased two dubs is the new bank located in △△△△△, a residence, and the place where 4-5 items are purchased again, the president shall be Nonindicted 8, as the mutual influence in the first floor located in △△△△△△, a residence, and the place where she purchased 4-5 items again, the president shall be Nonindicted 8.” The above statement made a statement to

Nonindicted 6 returned to Nonindicted 8 again before attending the prosecutor’s office again on the following day.

그런데 위와 같이 2차례 공소외 8과 통화한 내용을 살펴보면 공소외 6은 공소외 8에게 “아예 몇 일 날 샀는지 몇 개를 샀는지도 구입이, 그게 기억이 안납니다. 사실상”이라고 말한 것처럼 두 차례 모두 공소외 8로부터 골드바를 구입했는지, 두 번째 구입할 때 4개 이상 구입한 것이 맞는지 전혀 모르는 것처럼 진술하였다. 이에 대하여 원심은 공소외 8의 객관적인 진술을 이끌어내기 위한 시도의 일환으로 평가하였으나, 두 번째 구입한 골드바의 개수가 4 ~ 5개가 맞는다면 ‘자신이 한 번에 4개 이상의 골드바를 구입하지 않았냐?’라며 공소외 8의 기억을 환기시키려고 시도하는 것이 일반적일 것임에도 그런 시도를 하지 않은 점에 비추어 오히려 애초부터 공소외 8로부터 구입한 골드바의 개수를 정확하게 몰랐다고 보는 것이 합리적이다.

D. Nonindicted 6’s statement that “The number of the Alleys delivered twice is 4 to 5” itself appears to have failed to specify the exact number because of the absence of accurate memory of the number of the Alleys. However, for the reasons as seen earlier, if it is deemed that Nonindicted 6 was unable to accurately memory the number of the Alleys itself at the time of the initial statement on the grounds as seen earlier, it is difficult to view that Nonindicted 6’s statement is credibility to the extent that it is beyond a reasonable doubt merely because the subsequent statement is consistent.

Referencely, Nonindicted 6 consistently stated that the serial number of Nonindicted 6 issued twice was damaged. In light of the fact that Defendant 1’s loans located at the ▽△ bank knick point and the serial number remains 30,000,000 from the beginning, Nonindicted 6 was 50,000 from the beginning.

Therefore, in order to grant credibility to the statements that issued more than four two-lanes, the objective circumstances that Nonindicted 6 would have presumed to have purchased more than four duds at the time, should be supported. However, neither Nonindicted 8’s statement that purchased more than four duds upon Nonindicted 6’ request, nor Nonindicted 6’s statement that purchased more than four duds, is supported by “the second duds purchase more than four duds.”

Therefore, this part of the defendant 1's assertion is with merit.

B. Judgment on the prosecutor's misconception of facts and misapprehension of legal principles

1) Determination on the violation of the Presidential Records Management Act

A) The judgment of the court below

The lower court determined that the originals of the documents stated in the attached Table No. 1 are prepared by the Presidential Secretariat, the assisting agency, within the scope of the duties of special inspection related to the President’s performance of duties, and they do not constitute the Presidential records on the grounds of the legislative intent of the Presidential Records Act, the necessity of criminal punishment, the existence of separate penal regulations on the act of divulging presidential records inappropriate for disclosure, the equity of interpretation, etc.

B) Determination of the immediate deliberation

In full view of the following circumstances acknowledged by the record, the judgment of the court below that the documents in the attached Form No. 1, which were printed or copied differently from the original documents used in the reporting procedure from the original documents used by Defendant 1 in the computer used by Defendant 1, does not constitute the Presidential records is justifiable, and the judgment of the court below is not erroneous in the misapprehension of legal principles as to the scope of Presidential records.

(1) The legislative purpose of the Presidential Records Act is to enhance the transparency and accountability of the presidential administration.

By doing so, it is necessary to preserve and utilize records related to the performance of duties while in office of the President and make them public in principle.

In light of the above legislative purpose, in a case where a paper is reported on a specific issue in writing and the original and electronic files exist, if the original of the document is transferred to the Presidential Archives and preserved, and the registration of electronic documents is transferred, the legislative purpose of strengthening transparency and accountability in the management of state affairs through the preservation of records can be sufficiently achieved, and there is no significant reason for classifying the additional output or duplication of the same contents as the Presidential records and preserving them.

From the above point of view, regarding the penal provisions under Article 30 of the Presidential Records Act, interpreting records created in paper as in each of the documents of this case, including additional output or duplicate as in addition to the original documents provided for use according to the purpose of creation, is contrary to the principle of no punishment without law, which is the basic principle of no punishment without law, expansional interpretation and prohibition of analogical interpretation

In reality, even if the paper transfers both additional output or duplicates to the Presidential Archives as well as the original copy of a document, such a practice does not naturally generate normative effects beyond the principle of no punishment without law, and thus, it cannot be interpreted by including additional output or duplicates, which are not the records itself provided for the purpose of creating Presidential records within the scope of Presidential records, on such grounds.

Doll Presidential Records Act provides that one of the means to achieve the legislative purpose of the protection of Presidential records (Article 1), and specifically, it is prohibited to allow perusal, duplication, and submission of data during the protection period of presidentially designated records (Article 17 subparagraphs 1 and 4).

Article 17 of the Presidential Records Act, which provides for the protection of Presidential records, has its main legislative purpose to promote the transfer of Presidential records by limiting the disclosure of records, etc., the disclosure of which is inappropriate during a fixed period of time. Therefore, the scope of Presidential records shall not be extended to additional outputs or copies, rather than the original.

As a result, with regard to the situation that occurs due to leakage of printed materials or copies containing the same contents as original documents, and the leakage of printed materials or copies contained in such original documents through separate provisions such as the crime of divulgence of official secrets, even if punishment is imposed, there is no need to preserve overlapping documents, and there is no need to punish leakage, etc. by including them in the Presidential records, not the presidential-designated records subject to protection under Article 17 of the Presidential Records Act.

Therefore, this part of the prosecutor's argument is without merit.

2) Determination as to the disclosure of official secrets

A) Determination as to whether Defendant 2 may be deemed to have directed Defendant 1 to deliver Nonindicted 1’s trends

The lower court determined that Defendant 2’s statement was not acceptable on the ground that Defendant 1’s prosecutor’s statement and court’s statement on this part are inconsistent, and that unlike other documents delivered to Nonindicted 2, the content of the document does not relate to the presidential relative doctrine, and thus, Defendant 2’s statement that Defendant 2 did not have any reason to deliver the document to Nonindicted 2 from the standpoint of Defendant 2 is acceptable, and that it cannot be excluded from the probability that Defendant 1 sent the document for personal reasons.

The direct evidence that Defendant 2 instructed the delivery of Nonindicted Party 1’s trend documents is only Defendant 1’s prosecutor’s statement.

Defendant 1, while denying the delivery of documents in the prosecutor’s office, reversed his statement ten times thereafter, and instructed Defendant 2 to put the name of Nonindicted Party 1 in the name of Nonindicted Party 1, such as “Defendant 2 demanded several revisions with respect to Nonindicted Party 1’s trends. Defendant 2 was involved in the process of preparing the documents, and delivered the documents to Nonindicted Party 2 according to his direction.” However, Defendant 1 again denied the fact of delivery of Nonindicted Party 1’s trends after the court of the original trial.

Defendant 2 acknowledged the fact that Defendant 2 instructed the delivery of some documents related to the work of managing friendship, but consistently denied the direction of Nonindicted 1’s delivery, and Defendant 2’s assertion that Defendant 2 did not have any reason to direct the delivery because the nature of the above documents is not related to the work of managing friendship, is acceptable, it cannot be deemed that this part of the facts charged is proven beyond a reasonable doubt solely based on Defendant 1’s statement at the prosecutor’s office that was not consistent as above.

Therefore, this part of the prosecutor's argument is without merit.

B) Determination as to whether it constitutes a crime of divulgence of official secrets by notifying the content of the documents indicated in [Attachment 1] through 3, 5, and 10]

This part of the facts charged should be deemed to include not only the relevant content but also the fact that it is obtained and managed by the secretariat of ○○○○○○○○○ Office as well as the relevant content.

The lower court determined that “In the event that the facts identified as the result of inspection do not constitute a crime of corruption, but contain the contents of inappropriate personal information of the President’s relative, but there was no actual occurrence of corruption in the future, or there is a possibility of future corruption or need to prevent corruption, it may be possible for the Presidential Secretariat to notify the contents of inspection to a third party related to the President’s relative or corruption so that it is possible to correct improper conditions or not to proceed to the act of corruption in the future, and thus, it is reasonable to deem that the delivery of documents containing such contents is within the scope of legitimate inspection duties.”

Examining the record, the contents of each of the above documents are related to the suspicions of many people who engage in improper speech while emphasizing their friendship with the non-indicted 2 couple. In order to understand that the president should keep a distance with the relevant person in order to not impose a burden on the state administration, it seems that there is no choice but to specify the wrongful information about the relevant person at the level that the president's friendship can be understood.

Therefore, even if the above documents contain the contents of defamation such as women's character about the pertinent person, it is separate from the punishment for defamation if the contents are spread, and it is not unlawful as a legitimate act within the scope of duties of the office of the secretary of the ○○○○○○○, a presidential relative to Nonindicted 2 through Nonindicted 3.

The prosecutor argues that since the management affairs of the President-related relatives fall under the special inspection stipulated in Article 7(1) of the Office Organization of the Presidential Secretariat, it is limited to the collection or confirmation of facts under Article 7(2) of the same Act. If deemed necessary to conduct an investigation, it is necessary to request or refer the investigation to the relevant investigation agency, and it is not permissible to inform the President-related relatives of its contents.

However, the purport of Article 7(2) of the Decree on the Organization of the Office of the Presidential Secretariat is to prohibit the use of methods in violation of the laws and regulations on the collection of corruption or the verification of facts, or methods of compulsory disposition, and it cannot be deemed that the scope of inspection affairs itself is limited to the verification of facts.

However, when an investigation is required pursuant to the latter part of the same paragraph, the investigation shall be requested or referred, but it shall be deemed necessary to give prior notice to the President's relative and to be included in the scope of inspection, since the Defendants' improper words and conducts by the President's relative, not in the case of this case, but in an improper manner, such as exchanging with the surrounding people at issue, or having concerns over accessing the President's relative, or in the event that there is a need to prevent corruption in the future, it is necessary to give prior notice to the President's relative and to be considered as an act included in the scope of inspection. Therefore, it is reasonable for the Defendants to inform Nonindicted 2 of the inappropriate words and conducts by Nonindicted 2 in the perspective of prevention of corruption.

Therefore, this part of the prosecutor's argument is without merit.

3) Determination as to the non-fixed part

Nonindicted 7 stated in the court below that Defendant 1 provided Defendant 1 with a copy of the outflow of this case to Defendant 1 was involved in the outflow of Cheongdae police information officer who was dispatched to the police information officer, and that Defendant 1 took part in the outflow of the NIS. Based on Nonindicted 7’s speech, Defendant 1 appears to have prepared and submitted the “BH document theft and then global trend” documents, and Defendant 1 did not confirm the existence of the documents kept by Defendant 1 in the National Police Agency 2 before entering the police station, even if he delivered or confirmed the documents to Defendant 2 without carrying them into the police station, it cannot be ruled out that Defendant 1 was not specific.

For the same reason, there is no error of misunderstanding of facts in the judgment of the court below that the intention cannot be recognized.

Therefore, this part of the prosecutor's argument is without merit.

4) Determination as to the concealment of public documents

According to the records, each of the documents of this case was individually printed out or copied in the name of the ○○○○○ Office, or the official report of the ○○○ Office’s secretary, or the basic data, etc. in order to use them for the purpose of his duties. Thus, since there is no room for Defendant 1 to be provided for Defendant 1’s official duties at the time when the period of dispatch expires, it cannot be viewed as public documents. Defendant 1’s electromagnetic day of each of the above documents was included in the USB and transferred them to Defendant 2, a superior, the secretary of the ○○○○○○○○ Office. As such, each of the above documents is subject to reversal at the time of the completion of his dispatch, and it is not a character that should be transferred or delivered to his superior

As above, even if Defendant 1 kept the documents of this case on the Cheongdae-gu’s Cheong-gu’s Cheong-gu’s Cheong-gu’s Cheong-gu’s Cheong-gu’s Cheong-gu’s Cheong-gu’s Cheong-gu’s Cheong-gu’s Cheong-gu’s Cheong-gu’s Cheong-gu’s Cheong-gu’s Cheong-do, the documents

Therefore, this part of the prosecutor's argument is without merit.

5) Determination on the violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (Bribery) related to giving and receiving KRW 50 million in cash

In light of the fact that the criminal appellate court has the character as an ex post facto trial but also has the spirit of substantial direct cross-examination as prescribed in the Criminal Procedure Act, if the court below, which directly observed the appearance and attitude of the witness who is taking part in the witness examination procedure with respect to the witness supporting the facts charged, judged that the credibility of the witness's statement cannot be acknowledged, the appellate court's judgment rejecting the credibility of the witness's statement should be sufficient and acceptable if it is judged that the witness's statement can be acknowledged and that the appellate court's credibility can be admitted as evidence of conviction (see, e.g., Supreme Court Decision 2006Do4994, Nov. 24, 2006).

The court below rejected the credibility of Non-Indicted 6’s statement on the ground that there is an ambiguous point in the Non-Indicted 6’s statement on the source of cash KRW 50 million, the time, place, method, etc. of delivery, the contents of which are more concrete through investigation and trial, and Non-Indicted 6’s statement on the ground that there is a possibility that Non-Indicted 6’s memory on the amount of cash delivered to Defendant 1 or on the cash delivery itself was inaccurate or exaggerated due to lack of consistent statement, except for the fact that Non-Indicted 6 gave KRW 50 million to Defendant

Even upon examining the record, the court below’s determination rejecting the credibility of Non-Indicted 6’s statement cannot be seen to have been sufficiently and sufficiently acceptable, even if the evidence submitted by the prosecutor was insufficient to accept the judgment of the court below. Thus, the court below’s determination rejecting the credibility of Non-Indicted 6’s statement

Therefore, this part of the prosecutor's argument is without merit.

3. Conclusion

A. As seen earlier, the prosecutor’s appeal against the Defendants is without merit, and each of them is dismissed in accordance with Article 364(4) of the Criminal Procedure Act.

B. Defendant 1’s appeal regarding the acceptance of bribe must be reversed on the ground of its reason. Of these parts against Defendant 1, the lower court considered Defendant 1 as concurrent crimes under the former part of Article 37 of the Criminal Act and sentenced Defendant 1 of the crime of leakage of secrets in the line of duty due to delivery of the documents set forth in the attached Table No. 4 of the Act on the Aggravated Punishment, etc. of Specific Crimes (Bribery) and the documents set forth in the attached Table No. 4, and thus, it should be reversed in its entirety.

Therefore, the judgment on the assertion of unfair sentencing by Defendant 1 and the prosecutor is omitted, and the guilty part of the judgment below against Defendant 1 (including the acquittal part in the reason) is reversed under Article 364(6) of the Criminal Procedure Act, and the following is again decided through oral argument.

【Discretionary Judgment】

Criminal facts and summary of evidence

The summary of the facts charged by this court and the evidence related thereto is identical to the part related to the disclosure of secrets related to Nonindicted 1’s trend documents in the lower court’s official duties, and thus, they are cited in accordance with Article 369 of the Criminal Procedure Act.

Application of Statutes

1. Relevant Article of the Act and the choice of punishment for the crime;

Article 127 (Selection of Imprisonment or Imprisonment)

1. Suspension of execution;

Article 62(1) of the Criminal Act (Consideration of favorable Circumstances, etc. among the Reasons for Sentencing below)

Reasons for sentencing

Defendant 1 was dispatched to the Office of ○○○○○○○ secretary affiliated with the Office of the Presidential Secretariat and leaked documents containing secrets in the course of performing duties, such as inspection of the presidential relative relationship, is an unfavorable circumstance.

However, the document delivered by Defendant 1 to Nonindicted 2 does not directly leak to another third party; Defendant 1 did not have any history of criminal punishment; Defendant 1 did so for a considerable period of time in the instant case; and Defendant 1’s age, character and conduct, environment, motive and circumstance leading to the crime; means and consequence of the crime; and other various sentencing conditions specified in Article 51 of the Criminal Act, such as the circumstances before and after the crime, shall be determined by taking into account the following factors.

The acquittal portion

1. Summary of this part of the facts charged

Defendant 1, upon receipt of Defendant 2’s order on January 6, 2014, released the Presidential records produced and received by the assisting agency in relation to the performance of the presidential duties to Nonindicted 3, in collusion with Defendant 2, which were released without permission from the public agency, in collusion with Defendant 1, by delivering the documents to Nonindicted 3, the pertinent VIP root (Nonindicted 1) trends, such as the replacement theory of the chief secretary at the office of the secretary general, to Nonindicted 3.

2. Determination

In the above 2. B-1 of the judgment, this part of the facts charged do not constitute a crime, and thus, should be pronounced not guilty pursuant to the former part of Article 325 of the Criminal Procedure Act. However, as long as the court found the Defendant guilty of the divulgence of public duties related to Nonindicted 1’s trend documents, which were prosecuted for a commercial concurrent relationship, the court does not render a separate verdict of innocence.

Acquittal Parts

1. Summary of this part of the facts charged

피고인 1은 경찰공무원으로서, 2003. 3. 4.경부터 2008. 2. 29.경까지 국무총리실 ♤♤심의관실에 파견되어 행정부 공무원들의 ○○○○을 점검하고 공무원들의 비위에 관한 진정 또는 첩보를 확인하여 일선 수사기관에 그 진정이나 첩보를 통보하는 등의 업무를 담당하였다.

서울 중구 북창동 일대에서 ‘□□’, ‘♡♡♡♡’ 등 성매매 영업을 하는 유흥주점을 운영하던 공소외 6은 2002년 5월경부터 서울 강남구 삼성동, 역삼동 일대 건물들을 매수하여 같은 방식의 유흥주점을 운영하였는데, 이른바 룸살롱 황제로 알려진 공소외 9와 경쟁관계에 있었다.

Meanwhile, Nonindicted 9 maintained friendly relations with police officers in charge of controlling illegal entertainment taverns as seen above, but in particular, it was very closely related to Nonindicted 5 among those police officers.

그런데 공소외 5는 서울지방경찰청 광역수사대에서 근무하던 중인 2006년 12월경 공소외 6 소유의 서울 강남구 (주소 생략)에 있는 지상 4층, 지하 1층 건물에 입주한 ‘●’ 안마시술소가 성매매 영업을 하고 있고, 그 건물 지하 1층 및 지상 1층의 리모델링 공사가 건축법에 위반되며, 나아가 공소외 6이 운영하는 서울 중구 (주소 2 생략)에 있는 ‘□□’ 유흥주점, 서울 중구 (주소 3 생략)에 있는 ‘□□룸’ 유흥주점, 서울 중구 (주소 4 생략)에 있는 ‘♡♡♡♡’ 유흥주점도 위장 공동사업자를 내세우고 현금 매출을 누락하는 방법으로 소득세, 부가가치세, 특별소비세 등 조세를 포탈하고 있다는 내용 등으로 수사를 하였다. 공소외 6은 위와 같은 공소외 5의 수사로 인해 막대한 경제적 피해를 입게 되자, 공소외 9의 부탁을 받은 공소외 5가 자신에 대한 표적수사를 하고 있다고 생각하게 되었다.

공소외 6은 2007년 3 ~ 4월경 위 북창동 일대에서 유흥주점을 운영하고 있던 공소외 4가 공소외 5의 비리를 많이 알고 있다는 말을 듣고, 유흥주점 인테리어 공사를 하던 공소외 10의 소개로 공소외 4를 만나 공소외 9의 청탁을 받은 공소외 5가 자신이 운영하는 업소들을 표적수사하여 힘들다고 하소연하자, 공소외 4는 공소외 6에게 피고인을 만나 볼 것을 권유하였고, 이에 공소외 6은 그 무렵 서울 강남구 역삼동에 있는 국기원 부근의 ‘▲▲▲’ 유흥주점에서 피고인을 만났다.

Defendant 1 received a solicitation from Nonindicted 6 to the effect that “Nonindicted 5, the Inspector of the Seoul Metropolitan Police Agency, who is the Seoul Metropolitan Police Agency, may not interfere with the investigation of a business establishment that is operated by Nonindicted 9 upon Nonindicted 6’s request.” Defendant 1 said to the effect that “I am informed about the me about the me about the me about,” and Defendant 1 said to the effect that “I am informed about,” Defendant 6 again asked Nonindicted 6, who was working in the office of the Prime Minister, to stop the investigation of Nonindicted 5, because he had been working in the office of the Prime Minister. Accordingly, Defendant 1 created a corruption against Nonindicted 6, who was employed in the office of the Prime Minister, was allowed to investigate Nonindicted 5 from the Special Investigation Division of the National Police Agency and the Korea National Police Agency, so that I would stop Nonindicted 5 from investigating Nonindicted 5.

피고인 1은 공소외 6으로부터 위와 같은 취지의 청탁을 받고, 2007년 3월경부터 4월경 사이 어느 밤에 서울 강남구 (주소 5 생략)에 있는 ■■■■ 앞 주차장에서, 공소외 6으로부터 비닐 쇼핑백에 들어있는 현금 5,000만 원을 교부받고, 2007년 5월경 밤 서울 강남구 (주소 6 생략)에 있는 ‘◆◆’ 주점에서, 공소외 6으로부터 1개당 시가 약 2,000만 원 상당의 1㎏짜리 골드바 2개를 교부받고, 2007년 6월경부터 7월경까지 사이에 위 ‘◆◆’ 주점에서 공소외 6으로부터 1개당 시가 약 2,000만 원 상당의 1㎏짜리 골드바 4개를 교부받았다.

Ultimately, between March 2007 and July 2007, Defendant 1 received a bribe equivalent to KRW 170,000,000 from Nonindicted 6 and received a bribe in relation to his duties on three occasions.

2. Determination

A. Determination as to whether to give or receive one of the six total sum of KRW 50 million and the aggregate of KRW 50 million in cash

For the same reasons as indicated in paragraph (5) of the above 2.B. 50 million won, the evidence submitted by each prosecutor on the same reasons as stated in Paragraph (1)(2) of the above 2.2.0 million won is insufficient to recognize that Defendant 1 received cash from Nonindicted 6 or received 50 million won or more than 5,000 won, and there is no other evidence to prove otherwise (However, as seen below, the remaining facts charged for a single crime-related crime-related crime-related crime-related crime-related crime-related crime-related verdict of acquittal is rendered, and thus, the judgment of innocence is not separately pronounced in the text).

(b) The value of a dubine received;

As seen in the above paragraph (a) above, the money and valuables that can be recognized by Defendant 1 as having received from Nonindicted 6 are limited to three 1 kilograms in the first kilograms between May 2007 and June 2007.

However, according to the domestic gold price trend bound in the investigation records (No. 21, 1338 pages), the average price in May 2007 shall be 19,943,710 won/ kilograms, the average price in June 2007 shall be 19,56,177 won/ kilograms, and the average price in July 2007 shall be 19,657,600/ kilograms. As such, as in the facts charged, Defendant 1, as at the time of the receipt of the aggregate, shall not exceed 20 million won per unit.

Therefore, even if five copies were received, the total amount of the value does not exceed KRW 100 million. Therefore, Article 2(1)2 of the Act on the Aggravated Punishment, etc. of Specific Crimes and Article 129 of the Criminal Act should be applied.

C. Determination as to the expiration of the statute of limitations

According to Article 2(1)2 of the Act on the Aggravated Punishment, etc. of Specific Crimes, the statutory penalty is a limited term of at least seven years, and the statute of limitations is seven years pursuant to Article 3 of the Addenda of the Criminal Procedure Act (amended by Act No. 8730, Dec. 21, 2007) and Article 249(1)3 of the former Criminal Procedure Act (amended by Act No. 8730, Dec. 21, 2007; hereinafter the same).

However, since the part of the facts charged in this part of the facts charged was received by Defendant 1 in total from July 2007, Defendant 1 received five dubs from July 2007, it is evident that this part of the facts charged was filed on February 24, 2015, which was seven years after the lapse of July 2007.

3. Conclusion

If so, this part of the facts charged comes to the expiration of the statute of limitations, it is sentenced to acquittal pursuant to Article 326 subparagraph 3 of the Criminal Procedure Act.

(attached Form omitted)

Judges Choi Jae-sik (Presiding Judge)

1) Since the leakage of the above documents leads to the occurrence of a crime of divulgence of official duties, whether the actual inspection was conducted thereafter does not affect the establishment of a crime.