(영문) 서울중앙지방법원 2017.8.24. 선고 2016고합1178 판결

The Defendant, a police officer belonging to the F police station in Seoul E, performed duties such as the control of entertainment taverns, control support, case-related persons investigation, general criminal investigation, etc.

피고인은 2014. 2.경 서울 G에 있는 H 유흥주점 또는 그 인근에서 위 유흥주점의 영업사장인 I로부터 단속정보 제공, 단속 무마 등 대가로 100만 원을 교부받은 것을 비롯하여 그떄부터 2015. 1.경까지 별지 범죄일람표 기재와 같이 총 12회에 걸쳐 합계 1,200만 원을 교부받았다.

Accordingly, the defendant accepted a bribe in relation to his duties.

Summary of Evidence

1. Partial statement of the defendant;

1. Each legal statement of the witness J, K, I, L and M;

1. Each protocol of suspect examination of the accused, N, and I by the prosecution;

1. Each prosecutor's statement of J, K,O, P, N, I, L, Q, and M;

1. An investigation report (Attachment, such as the R cafeteria business statement, hearing report, copy of books, etc.), investigation report (report on the interview of witnesses), investigation report (report on the interview of witnesses), investigation report (verification of contents of interview by a witness who is an entertainment drinking house unemploymentist, such as H), one copy of interview record on June 9, 2016, one copy of interview record on June 24, 2016, one copy of investigation report (report on the results of interview), one copy of investigation report (report on the results of interview), one copy of investigation report on the violation of the Attorney-at-Law Act, one copy of the protocol of examination of witnesses, one copy of the protocol of examination of witnesses, one copy of investigation report (report on the reading of the fourth protocol of trial), one copy of the protocol of examination of witnesses (record of the fourth protocol of the witnessJ), one recording book, one recording document, one tape recording document, one tape recording document, one tape recording document, one tape recording document, one tape recording of witness witness, one protocol of examination of witnesses;

1. A copy of the funds daily statement, an investigation report (financial CD attachment report), and a CD-1 copy on the date paid to the Bank for official use;

1. e-mail details, three-one-day three-dimensional levels of funds, investigation reports (reports attached to the details of K financial transactions of reference witnesses), investigation reports (reports attached to the details of the financial transactions of reference witnesses), and details of each financial transaction;

1. Investigation report (report attached to a field photo), 17 copies of the site photo, investigation report (report attached to a place of settlement of accounts, etc.), -137, and other field photographs (six copies), including the field photo (report attached to a place of settlement of accounts, etc.).

1. A criminal investigation report (verification of the details of 112 declarations related to customs in the jurisdiction of the Republic of Korea), -12 copies of the case processing table of 112 Declarations (from July 2015 to June 2016), investigation reports (verification of the details of 112 Declarations, etc.), one notification of confirmation of 112 Declarations, one copy of notification of 112 Declarations, one copy of the case processing statement of -12 Declarations, and a criminal investigation report (verification report of the suspect's workplace

1. Investigation reports (business registration details among the suspect monetary counter-party), replies to requests for cooperation in investigation, reports on criminal investigations (Analysis of monetary details with the subject owners of the crackdown from among the suspect A monetary counter-party), investigation reports (report on confirmation of business owners subject to crackdown and criminal punishment details from among the suspect A monetary counter-party), investigation reports (report on the results of execution of a warrant of search and seizure);

1. Investigation report (verification of the identity of a suspect, including a suspect V golf gathering, etc.), the document of title that the member is a member's clinic, investigation report (verification of the identity of a suspect V golf gathering member, etc.), investigation cooperation request (one copy of the list of replys to requests for acquisition and loss of health insurance qualifications);

1. An investigation report (in the event that the paper of the R trade name is kept available for acquisition), an investigation report (in the case of accompanying photographs of the paper of the R package);

-2 photographs

1. Court rulings (2017No230);

Application of Statutes

1. Article applicable to criminal facts;

Article 129(1) of the Criminal Act (In general, a fine is concurrently imposed pursuant to Article 2(2) of the Act on the Aggravated Punishment, etc. of Specific Crimes)

1. Detention in a workhouse;

Articles 70(1) and 69(2) of the Criminal Act

1. Additional collection:

Article 134 of the Criminal Act

1. Order of provisional payment;

Article 334(1) of the Criminal Procedure Act

Judgment on the argument of the defendant and defense counsel

1. Summary of the assertion

The Defendant did not have received a bribe from I. The direct evidence corresponding to the facts charged in the instant case is only the statement I, N, etc., and its credibility cannot be acknowledged because it is not consistent or rational, and in particular, N’s statement cannot be viewed as having been made under particularly reliable circumstances, and thus, there is no difference in admissibility of evidence.

2. Determination

In full view of the following facts and circumstances acknowledged by this court through lawful adoption and investigation, the defendant could be recognized as having received a bribe as stated in the facts constituting the crime in the judgment, in return for provision of control information, etc.

A. N, an actual operator of the TW and H entertainment tavern (hereinafter referred to as “the entertainment tavern in this case”) 1) paid monthly money to be provided as a bribe to the competent authorities, such as the F police station and W District (hereinafter referred to as the “public entertainment tavern”). The J, who served as the chief of the accounting department in the entertainment tavern in this case, entered the payment into the F police station and W District, as the president’s expenditure in the daily table (Evidence No. 143), the Minister of Private Affairs, the cooperation expenses (I), the “T”, and the “Water”. However, the portion of the “Water” is a part of the official freight to be paid to the military, and the Defendant and the JJ statement that is not related (see N and J statement).

The daily report of the Fund means that 80,000 won or more per month from February 2014 to October 2014, 2014, 5.5 million won as of November 2014, 3 million won as of December 2014, and 5.5 million won as of January 2015, 200 won as of February 2015 (i.e., "water supply" as of February 2015, and the part on March 3, 2015, as of February 2015, it is stated that 5.5 million won as of December 201, 200 and 5.5 million won as of the date of the Fund are paid as the government-funded funds (i.e., "water supply" as of February 2015, and there is no entry as to the government-funded funds as of March 2015).

(b) the statements and credibility of I;

1) Contents of the statement

① At the prosecution, I, while denying the fact that he was given official visa funds from N in the first place, received KRW 500,000 per month from N to the closure of the business, and additionally received KRW 2,00,000 from N. In return, I received money, and sent it to police officers in the vicinity of the instant entertainment tavern. The F police station life order division of KRW 1,00,000 per month was paid KRW 1,000,000 per month. After considering the fact that the head of A was in his service as a leader, the police officer, was well aware of the fact that he was in his service as a leader, and then asked the head of the A cafeteria to present his name at the 5th cafeteria, and the Defendant made a statement that he was in service as the head of the A cafeteria during the period of 100,000,000 won. Furthermore, the Defendant made a statement to the head of the A Y’s name and the head of the A 100,000.

② However, on October 14, 2016, the Defendant retired from the business of the instant entertainment drinking house from November 2014 to he/she, and thereafter he/she was aware of whether money was paid to the Defendant. He/she made a statement that he/she only delivered money not exceeding KRW 1,00,000,000 to the Defendant. In this court, he/she was in charge of only KRW 20-3,000,000 among money given to the police officer, and the money above KRW 1,00,00 was directly managed by N. The Defendant also made a statement that he/she would receive money from him/her from a certain point of time, and that he/she would receive money from him/her. In addition, he/she made a statement that he/she was able to receive money from him/her, and that he/she was able to receive money from him/her before he/she closed his/her living order.

2) The credibility, etc. of the statement

A) ① The first consistently stated that the Defendant paid KRW 1,00,000 per month to the prosecution prior to the last investigation. ② The Defendant did not have a child as before the reversal of the first statement, and the Defendant resided in the Namyang-si X, such as V, for more than 10 years. ③ Before the investigation on October 14, 2016, I stated that N was aware of the fact that N was dead on or after July 2016, and that N was given a written statement to the effect that N was paid money to his family (see, e.g., evidence No. 159, 160). ④ The first stated that he suffered from dementia for reasons of mental illness (see, e.g., Supreme Court Decision 19, 160). However, the first statement to the prosecution that was reversed was inconsistent with the first statement of the facts charged, and thus, the amount of credibility and the first statement to the effect that it was clearly inconsistent with the present facts charged by the Attorney-at-Law Act.

B) Meanwhile, in view of the fact that the Defendant was working in the Wedman from the early February 2014 when the Defendant was introduced by V, it appears that the term “1” means the last day of January 2014 or around February 2014, when considering that the Defendant was working in the Wedman.

C. The admissibility and reliability of N’s statements

1) As to admissibility

N4) Since N4 died on July 2, 2016, prior to the instant indictment, it was examined whether N’s prosecutorial statement was made in a particularly reliable state under Article 314 of the Criminal Procedure Act. Considering the following circumstances, it is reasonable to deem N’s prosecutorial statement was made in a particularly reliable state, since there is no room for false entry into the statement, and there is specific and external circumstances to guarantee the credibility or decentralization of the content, and thus, N’s prosecutorial statement was made in a particularly reliable state.

① In the prosecutor’s office, N was investigated on May 26, 2016, May 31, 2016, and June 8, 2016 as a suspect with respect to the suspicion of tax evasion, etc. of I’s tax evasion, etc., and was investigated on June 23, 2016 as a witness status on the suspicion of violation of the Attorney-at-Law Act by I. The examination was conducted on June 23, 2016, and the examination was conducted on less than four hours, and the investigation was not conducted in particular. The Defendant inspected the protocol after the investigation was conducted, and signed and sealed on the confirmation document of the investigation process without raising any objection or statement about the investigation process or matters to be entered. In particular, at the time of the two-time investigation, the Defendant stated that I provided funds to I under the status of having been notified of the right to refuse to make statements and the right to counsel by the prosecutor. In the second investigation, I appears to have been relatively free in the atmosphere that the investigation was conducted by failing to complete the investigation.

② On May 26, 2016, J voluntarily submitted a computer containing a daily file to the prosecution in relation to the investigation into tax evasion of the entertainment tavern of this case, and it appears that it could not deny the fact that a bribe was granted due to the J and K’s statement made by the J and K. In fact, N in the prosecutor’s investigation conducted on June 9, 2016, "in the case of an interview with AA, which is located in the president Z and the detention house meeting of the president of the entertainment drinking club of this case (the investigation record 217 pages)," and "J and K did not make a false statement about 30 times" (the investigation record 217 pages).

③ After the three-time investigation by N’s prosecutor, the prosecutor summoned I as the suspect and examined I through three times, and gave an opportunity to reflect to I that it is different from N’s statement from N’s statement to deny the receipt of N’s exciation of the fact. However, I reversed I’s statement on June 21, 2016 and received N’s exciation funds.

④ At the time of the interview with the Z with the detention house, N took a view that a high sentence of the suspicion of tax evasion may take place, and appears to have appointed a defense counsel to a patrolman on June 2016. If so, it is difficult to view that N, like the defense counsel, made a false statement because it concerns over a severe sentence of tax evasion, and there is no special motive or reason to make a false statement otherwise.

⑤ N has consistently stated the developments leading up to which I had worked as a business president in the instant entertainment drinking club and the developments leading up to the payment of official rain funds. The statements are consistent with the statements of K and J, etc.

2) Contents of the statement

N from October 201 to October 201, the time when the instant entertainment drinking house was opened by the Prosecutor’s Office, from around 8 million won each month, from around 2010 to around 8 million won. Around July 2014, at a Y restaurant in the vicinity of the instant entertainment drinking house, I introduced the head of A, who works in the order system of the F Police Station from I, and was placed in a Myanmar bag at the end of the instant entertainment drinking house, and 1 million won at the end of the Hague. A head of A was transferred to AB box, and then AC head of A, at his own later, stated that he was the head of AC leader.

3) The credibility of the statement

① On July 2014, a police officer with Category A, who served in the F police station life order division, was a police officer with Category A, and the defendant was sent to AB police box. The police officer, who served in the F police station life order division, was replaced by the defendant. ② The defendant also stated that the defendant was able to serve in the F police station life order division. As seen earlier, the defendant stated that KRW 1 million was paid each month from the time when the defendant was in the F police station life order division. Furthermore, the credibility of the N’s statement can be acknowledged in full view of the grounds for determining that N’s statement was made under particularly reliable circumstances, and the head of the F police station order division, whose N is named, is the defendant.

(d) the statements of J or K;

1) Statement by J

In the process of talking with N and I, the J expressed that the leader of the order-based A, who has long worked in U, will pay one million won each month to the leader of the order-based A in U.S. In this context, the leader of the A knows that he/she should pay him/her to him/her. On the other hand, around 2014, he/she is aware that the leader of the A head of the order-based entertainment business in U.S. received a long amount from N. In the course of dialogue with N., I stated that he/she should pay him/her to him/her the amount of money already paid to him/her. In the prosecution, he/she stated that he/she would pay him/her one million won each month from N to him/her, and that she would pay him/her directly to him/herself when he/she receives a statement on May 8 through 40, 201.

2) K’s statement

K consistently stated in the prosecutor's office and in this court that it has been delivered KRW 2,00,000 each month to the order system of the F police station. From the time when the entertainment tavern in this case begins, I received KRW 8,00,000,000 from the opening of the business, he stored in three bags, each of which was divided into KRW 2,00,000,000 and KRW 1,000,000,000 for each of the two bags, and in this court, I made a statement that "I provided N with a lot of talks about the leader A, and he provided money to the leader."

E. Relevant circumstances and circumstances consistent with the aforementioned statements

1) The Defendant served in W Zone and served in the Life Order System of the F police station from February 2, 2014 to February 2, 2015.

2) On September 22, 2016, at the time of the search and seizure of the Defendant’s house, the paper of the R cafeteria using I and N as the place of the conduit for the payment of the meals by police officers instead of the meal costs by police officers was found. As seen earlier, I stated that the Defendant was given KRW 1 million to the Defendant at the R cafeteria. The Defendant did not provide a proper explanation as to the reasons why I kept the paper room at the cafeteria, despite his assertion that there was no space between police officers.

3) From November 2010 to February 2015, the Defendant: (a) was convicted of having received a bribe of KRW 43.3 million from I from I; and (b) was 10 years or more, such as having golf with police officers V who were convicted of having received a bribe of KRW 43.3 million; and (c) the Defendant stated that I received a bribe of KRW 43.3 million from I was introduced from V. As seen earlier.

4) When the Defendant works in the F police station’s living order circles, the Defendant was in charge of 'a person in charge of sexual traffic control, etc.'.

5) In around 2008, the Defendant stated by the prosecution that he was not the head of A when he was called to a entertainment establishment that he had worked at the time of his work in W District, and that he was not the head of A when he went to the entertainment establishment due to a subsequent report, etc.

6) The Defendant worked in W Zone for a long time in U jurisdiction, such as moving to the F police station’s living order system, after having served in W Zone for one year from around 2008 and two years from February 2, 2012.

7) The Defendant received criminal investigations from August 18, 2015 to August 16, 2016, and received criminal punishment, or exchanged several conversations or text messages with entertainment drinking house owners within the F police station having criminal record.

F. Determination on the amount and period of the bribe received

In full view of the above facts, the defendant can be recognized as having received a bribe regularly from N. 1. Specifically, the defendant's statement before the reversal of I, that "At the end of January 2014 or around February 2014, the defendant was given KRW 1,00,000 per month since he was introduced to leave the F.M.," to the F.M. life order system of the F.M. at the F.M. police station, and the defendant's statement that "at the end of January 2014 or around February 2014, the defendant was given 0,000 won every month since he was introduced to the F.M.," but he was introduced from V to the F.M. life order of the F.M. at the F. police station, the defendant's statement that "at the end of 0,000 won or more every month," and that "at the end of 20,000 won, the defendant was given 10,000 won or more from the F.M.M.

Meanwhile, the J and K stated that the government-funded fund was paid by March 2015. However, as seen earlier, the government-funded fund was not indicated in the part on March 2015, and only the government-funded fund was written ("water") in February 2015, the Defendant received a bribe from the Defendant until January 2015, in full view of the fact that the government-funded fund was written on March 2015, and only the government-funded fund was written ("water").

G. Conclusion

Comprehensively taking account of the foregoing, the Defendant, as stated in the facts constituting a crime, received KRW 12 million monthly payment from February 2014 to January 2015, and received a bribe of KRW 12 million in total over 12 times every month.

Reasons for sentencing

1. Scope of applicable sentences under law: Imprisonment for not more than five years, a fine not exceeding 24 million won to 60 million won;

2. Application of the sentencing criteria;

[Determination of Punishment] Type 2 of Acceptance of Bribery (not less than KRW 10 million but less than KRW 30 million)

【Special Convicted Person】

[Scope of Recommendation] Basic Field, One year to three years of imprisonment

3. Determination of sentence: A sentence of imprisonment with prison labor for three years, a fine of twenty-four million won is a police officer who is responsible for preventing and investigating a crime, and the defendant received a bribe one million won per month for the convenience of convenience from the proprietor of an entertainment tavern business under his/her jurisdiction, and there is a need to strictly punish a police officer in consideration of the nature of the crime in that the period and amount of acceptance of bribe are very poor and the high integrity and morality required for the police officer. In particular, it is clear that the police officer who works at the highest line at the scene of the crime at the scene of the crime cannot be eradicated illegal acts, such as sexual traffic, in a case where he/she is affiliated with the entertainment tavern business as above, and it is deep to police officers who faithfully perform duties assigned according to law and conscience, regardless of his/her intention. Nevertheless, the defendant cannot be found to be more favorable to him/her from the investigation agency to the rejection of his/her crime, and there is no other extenuating circumstance.

In addition, the defendant's age, character and conduct, environment, motive, means and result of the crime, various factors of sentencing as shown in the arguments in this case, such as the circumstances after the crime, and the scope of recommended sentences according to the sentencing guidelines shall be determined as ordered.

The acquittal portion

1. Summary of the facts charged

In addition to the facts stated in the Defendant’s judgment, the Prosecutor charged the Defendant with the receipt of a bribe of KRW 14 million in total on 14 occasions each month from February 2014 to March 2015 on the ground that he/she received KRW 1 million from I as well as the first policeman and the first policeman on February 2015.

2. Determination

As seen earlier, in light of the following: (a) there is no record of the payment of the excience funds on March 2015, 2015; and (b) there is no record of the payment of the excience funds on February 2, 2015, only the excience funds to be paid to the Silova metropolitan investigation group; and (c) other N’s statement that the excience funds were paid until January 2015, it is difficult to recognize that the evidence submitted by the prosecutor alone was received a bribe from I even for the first patrol officer on February 2015, 2015, and the first patrol officer on March 2015.

Therefore, among the facts charged in the instant case, the part that the Defendant received a bribe of one million won from I on February 2015 and the first patrol officer on March 2015 constitutes a case where there is no proof of crime and thus, the Defendant should be acquitted pursuant to the latter part of Article 325 of the Criminal Procedure Act. However, as long as the Defendant was found guilty of the facts charged as stated in this part of the facts charged, the sentence of innocence shall not be separately pronounced.

Judges

The presiding judge; and

Judges in the order of precedence

Judge Kang Dong-hun

Note tin

1) N was operated as T at the place of the instant entertainment tavern from October 2010 to January 2013, and around 1 month business was suspended, while the N was operated as H from March 2013 to April 2015.

2) It is not clear which police authority is accurately referred to in the new and military metropolitan investigation cost.

3) As seen later, I is under trial on the facts charged that I received a bribe.

4) N was indicted on the charge of violating the Act on Aggravated Punishment, etc. of Specific Crimes (taxes) and resulting in the heart expenditure, and died on July 2, 2016 after the release on June 28, 2016.

5) On June 13, 2016, June 14, 2016, and June 21, 2016, respectively.

6) Seoul Central District Court 2016Gohap789, Seoul High Court 2017No230, and currently the final appeal (Supreme Court 2017Do12830) is in progress.