[1] The standard for determining the bribe performance and duty relationship in the crime of bribery

[2] The standard for determining whether the consignee actually borrows the money in the crime of bribery where the consignee claims that he/she received the money from the receiver

[3] The person who bears the burden of proving the facts charged in a criminal trial (=the prosecutor), the probative value of the evidence for finding a guilty, and whether the same legal principle applies to a case where the nature of the received money is disputed as a bribe (affirmative)

[1] Articles 129(1) and 133(1) of the Criminal Act / [2] Articles 129(1) and 133(1) of the Criminal Act / [3] Articles 307 and 308 of the Criminal Procedure Act

[1] Supreme Court Decision 2001Do3579 Decided October 12, 2001 (Gong2001Ha, 2510), Supreme Court Decision 2001Do6721 Decided July 26, 2002 (Gong2002Ha, 2142) Supreme Court Decision 2007Do5190 Decided February 1, 2008 / [2/3] Supreme Court Decision 2011Do7261 Decided November 10, 201 (Gong201Ha, 2601) / [3] Supreme Court Decision 2009Do4386 Decided September 30, 206; Supreme Court Decision 2006Do7305 Decided April 27, 2006; Supreme Court Decision 2009Do72969 Decided June 29, 2005)

Defendant 1 and two others

Defendants

Attorneys Kim Young-young et al.

Changwon District Court Decision 2012No86 decided May 3, 2012

The part of the lower judgment against Defendant 1 and 2 is reversed, and that part of the case is remanded to the Changwon District Court Panel Division. Defendant 3’s appeal is dismissed.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed by Defendant 1).

1. Determination on the remainder of Defendant 1’s grounds of appeal excluding the offering of a bribe to Defendant 2

A. As to the acquisition of third-party brain in the amount of KRW 10 million on March 29, 2005

Examining the reasoning of the judgment below in light of the evidence duly admitted by the court below, the court below is just in finding Defendant 1 guilty of this part of the facts charged, and there is no error in the misapprehension of the principle of free evaluation of evidence against logical and empirical rules as alleged in the grounds of appeal.

B. As to the offering of a bribe to Nonindicted 2

When a public official receives money, valuables, or other benefits from a person subject to his/her duties, barring special circumstances, such as merely an equivalent consideration in light of social norms or a person’s personal-friendly relationship with him/her, and thus, cannot be deemed to have no connection with his/her duties unless there exist any special circumstances, such as where a public official received money and valuables in relation to his/her duties, even if he/she received money and valuables in relation to his/her duties, such money and valuables received shall constitute a bribe (see, e.g., Supreme Court Decisions 2001Do6721, Jul. 26, 2002; 2007Do5190, Feb. 1, 2008).

Defendant 1’s summary of this part of the facts charged is that Defendant 1, who was well aware of the inspection of “Nonindicted 1 inspection” as “Nonindicted 1 inspection” on the date and time indicated in the indictment, gave KRW 3 million to Nonindicted 2, who was in office as ○○○○ Do Vice Governor, thereby giving a bribe in relation to the duties of ○○○○ Do Vice Governor regarding budget support related to charnel houses.

In full view of the legal principles as seen earlier and the content of duties, relationship between Nonindicted 2 and Defendant 1, the fact that there was no special relationship between Defendant 1 and Nonindicted 2, and the circumstances and timing of accepting money and valuables, etc., when revealed through the evidence duly admitted by the lower court, it is sufficient to view the said money and valuables as a bribe related to Nonindicted 2’s duties. The mere fact that the money and valuables were given as the purchase price for the book does not constitute a bribe within the scope of a private case.

The judgment below to the same purport is just, and contrary to what is alleged in the grounds of appeal, there were no errors of misapprehending the legal principles on the crime of bribery by misapprehending the bounds of the principle of free evaluation of evidence.

C. As to occupational embezzlement

In full view of the circumstances stated in its reasoning, the lower court recognized that Defendant 1 conspiredd with Nonindicted 4’s representative director of Nonindicted Co. 3 and embezzled Nonindicted Co. 3’s corporate funds by pretending to give a bribe to a member of the National Assembly or make a donation to Nonindicted 4, etc. for the purpose of voluntary use by Defendant 1.

Examining the reasoning of the judgment below in light of the evidence duly admitted by the court below, the above determination by the court below is just and acceptable. Contrary to the allegations in the grounds of appeal, there were no errors in the misapprehension of the legal principles as to the establishment of joint principal offender and the calculation of the amount of embezzlement and the number of such crimes, by misapprehending the bounds of the principle of free evaluation of evidence against logical and empirical rules.

2. Of Defendant 1’s grounds of appeal, determination as to the offering of a bribe to Defendant 2 and Defendant 2’s grounds of appeal

A. In the context of the crime of bribery, if the consignee claims that he/she received money from the accepter but did not receive the money from the accepter, the issue of whether or not the accepter actually borrows the money shall be determined by comprehensively taking into account all the objective circumstances revealed by evidence such as motive, delivery process and method, relationship between the accepter and the accepter, both duties and work experience, necessity and possibility of borrowing the money from the accepter, the amount of borrowing and use of the borrowed money, the economic situation of the accepter and the amount of the borrowed money, the amount of the borrowed money, the payment period and interest agreement, the possibility of compulsory execution, etc. (see Supreme Court Decision 2009Do4386, Sept. 30, 2010; Supreme Court Decision 201Do7261, Nov. 10, 2011; Supreme Court Decision 2000Do475, Sept. 7, 2017).

B. On July 7, 2008, Defendant 1 transferred to Defendant 2 the money for various convenience in the process of selling a charnel house for the inspection of the inspection of the inspection of the non-indicted 1 and the money for assistance in the process of selling the ownership of a charnel in the future. Defendant 2 received a bribe by receiving the said money with the knowledge of the above circumstances. The summary of the facts charged in this part of the preliminary charges is based on the same factual basis, Defendant 1 offered a bribe equivalent to financial gains by lending KRW 10 million to Defendant 2 and Defendant 2 received a bribe equivalent to financial gains by borrowing the said money. Defendant 2 received a bribe by borrowing the said money.

As to this, although there was a fact that the above Defendants had been the number of money as stated in the facts charged from the investigative agency to the court below, they argued that the money was not a bribe but a mere loan. However, the court below held that Defendant 2 was guilty of this part of the above money, considering the following circumstances in its reasoning: (a) Defendant 1 was promoting the sale of a charnel house to △△ Group at the time of paying the money; (b) Defendant 2 was a member of the Administrative Welfare Committee of the △△ Group in charge of the decision to purchase a charnel house or a member of the △△ Group; (c) Defendant 2 was working as the chairperson of the △△ Group; (d) there was no loan certificate regarding the receipt of the above KRW 10 million; (c) there was no specific agreement on the due date and interest; (d) Defendant 2 used part of the above money with the above money as business promotion expenses; and (e) it was difficult to deem that there was no economic situation of Defendant 2 at the time; and (e) it was not consistent with the statement of the above Defendants on the due date of the loan.

C. However, the lower court’s determination is difficult to accept for the following reasons.

According to the reasoning of the judgment below and the records, the above Defendants knew to each other for more than 10 years, and Defendant 2 was elected as the chairman of the △△ Council on June 2008, immediately before giving and receiving KRW 10 million, and there was a need for considerable activity expenses in addition to official business expenses at that time. Defendant 1 delivered money by means of remitting KRW 10 million from the account under the name of Nonindicted 1’s inspection to the account under the name of Defendant 2 via Internet banking. Defendant 2 was not only the first investigation by the prosecutor’s office but also the prosecutor’s office’s transfer of money out of KRW 10 million to the said account. Defendant 1’s transfer of money out of the above facts charged to Defendant 1’s real name and KRW 10 million from the time of search and seizure of Nonindicted 1 inspection by the prosecutor’s office to the above point of view that it was merely a reasonable ground for the above Defendant 1’s delivery of money from the first day to the above investigation agency.

Nevertheless, the court below concluded that Defendant 2 received the above KRW 10 million from Defendant 1 as a bribe on the sole basis of the circumstances indicated in its holding, and held Defendant 2 guilty of all of the facts charged. In so doing, the court below erred by misapprehending the legal principles on the degree of proof required in criminal proceedings, or by erroneously recognizing facts beyond the bounds of the principle of free evaluation of evidence in violation of logical and empirical rules, thereby adversely affecting the conclusion of the judgment. The grounds of appeal by the above Defendants pointing this out are with merit.

3. Judgment on Defendant 3’s grounds of appeal

A. As to the acceptance of bribe

Examining the reasoning of the judgment below in light of the evidence duly admitted by the court below, the court below is just in finding Defendant 3 guilty of this part of the facts charged, and contrary to what is alleged in the grounds of appeal, the court below did not err by misapprehending the bounds of the principle of free evaluation of evidence against logical and empirical rules or by failing

B. As to the violation of the Political Funds Act

Based on the circumstances indicated in its holding, the lower court determined that the Defendant’s act of receiving money by the said Defendant constitutes a crime of receiving political funds under Article 45(1) of the Political Funds Act on the premise that all of the money received by Defendant 3 from 29, including Nonindicted 6, etc., constitutes political funds.

Examining the reasoning of the judgment below in light of the evidence duly admitted by the court below, the above determination by the court below is just and acceptable. Contrary to the allegations in the grounds of appeal, there were no errors by misapprehending the legal principles as to the meaning of political funds and the admissibility of illegally collected evidence, or by misapprehending the legal principles as to the lawful act.

4. Scope of reversal

As seen earlier, the part of the judgment of the court below against Defendant 1 in relation to the offering of a bribe to Defendant 2 and the part against Defendant 2 should be reversed. The part against Defendant 2 in relation to the offering of a bribe to Defendant 2 is reversed, and since the court below rendered a single punishment in relation to the remaining part found guilty as to Defendant 1 and the concurrent crimes under the former part of Article 37 of the Criminal Act, the part against Defendant 1 and 2 in the judgment below should be reversed in its entirety.

5. Conclusion

Therefore, without further proceeding to decide on Defendant 1’s remaining grounds of appeal, the part as to Defendant 1 and 2 of the judgment below is reversed, and that part of the case is remanded to the court below for further proceedings consistent with this Opinion. Defendant 3’s appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Yong-deok (Presiding Justice)