The case reversing the judgment of the court below which acquitted on the ground that there is no evidence corresponding to the facts charged, because it violated the rules of evidence.

The case reversing the judgment of the court below which acquitted on the ground that there is no evidence corresponding to the facts charged, because it violated the rules of evidence.

Article 308 of the Criminal Procedure Act

Defendant

Prosecutor

Seoul High Court Decision 88No3216 delivered on March 30, 1990

Of the judgment of the court below, the acquittal portion against the defendant is reversed.

The case is remanded to the Seoul High Court on this part.

The Prosecutor's grounds of appeal are examined.

1. The summary of the facts charged in the instant case (Bribery and fraud) against the Defendant

(i) On October 1987, at the office of a factory operated by the Co-Defendant of the first instance trial, the Defendant requested the Co-Defendant of the first instance trial to issue a factory registration certificate in addition to the first instance trial industry and the public official in charge of the issuance of the factory registration certificate to Non-Indicted 1, a local administrative officer in charge of the issuance of the first instance trial and offered a bribe of 500,000 won in connection with other's duties by providing a total of 200,000 won at the case cost, including the delivery of 200,000 won at the case cost. (ii) Notwithstanding the fact that the Co-Defendant of the first instance trial did not intend to deliver the certificate of factory registration to the public official in charge of the issuance of the certificate of factory registration or the public official in charge of the permission for the installation of pollutant emission facilities, the Defendant made a false statement that he would give money to the above Co-Defendant of the first instance trial to obtain the certificate of factory registration as soon as possible and obtained the permission for the installation of emission facilities.

2. Summary of the reasoning of the judgment of the first instance

The first instance court found the Defendant guilty of the offering of the instant bribe and the facts charged of fraud, and found the Defendant guilty of all the charges of fraud as evidence, it was difficult for the Co-defendant in the court of the first instance, the statement in the court of the co-defendant in the court of the first instance, the statement in the suspect interrogation protocol in the first instance trial as to the co-defendant in the prosecutor preparation, and the statement in the statement statement as to the confidence in the preparation

3. Summary of the reasoning of the judgment below

The court below denied the charge against the fraud that the defendant acquired 6.5 million won or more from the facts charged since the investigation agency to the court below. In light of the records of the evidence presented in the court of first instance and the evidence presented in the court of original instance, it is public health. According to the records of the statement of the prosecutor's newly established hearing, it is the same that the co-defendant of the court of first instance give money to the defendant three times in addition to 200,000 won recognized in the part of the offering of a bribe, it is cash or check, or it is not well known. However, the first instance court's first instance court's statement that the co-defendant did not have issued three money with the factory registration certificate in the factory registration certificate, and it is hard to find the defendant guilty of the above facts charged because it is not sufficient to acknowledge the credibility of the defendant's statement from the court of first instance to the court of first instance because the co-defendant of this case's new testimony or statement of the first instance court's new testimony is not sufficient.

즉, 제1심 공동피고인은 검사 앞에서의 첫 조사시에는 자신의 공장등록증 발급관계로 그 담당공무원인 공소외 공소외 1에게, 1987.11.중순경 금 150만원을 그 경영의 공장사무실에서, 같은 무렵 금 100만원을 봉영다방에서, 1988.1.말경 금 100만원을 강서구청 앞 다방에서 각 건내주고, 배출시설 설치허가 관계로는 그 담당공무원인 공소외 2에게, 1988.2.초순경 금 150만원을, 같은 달 말경 금 100만원을 각 위 공장 사무실에서 각 건내주었다고 진술하면서 피고인에 대하여는 전혀 아무런 진술이 없었는데, 2회 조사시부터 위 진술을 번복하여 제1심법정에 이르기까지 피고인이 위 각 담당공무원들에게 뇌물로 갖다주어야 한다면서 수시로 요구하여 합계 금 650만원을 피고인에게 주었는데, 피고인이 이를 위 담당공무원들에게 건내주지 않고 중간에서 가로챘다고 진술하면서 이 사건 공소사실에 부합하는 취지의 진술을 하고 있는바, 2회 조사시부터 번복하여 진술한 부분은 (i) 제1심 공동피고인이 피고인에게 돈을 주었다는 일시와 장소, 금액의 제대로 특정하고 있지 못하고 있는점(진술할 때마다 일시와 장소·금액을 조금씩 엇갈리게 진술하고 있다), (ii) 제1심 공동피고인이 피고인에게 금650만원이라는 적지 않은 금원을 주었다면서 이를 뒤받침할 만한 아무런 자료도 제시하지 못하고 있는점, (iii) 제1심 공동피고인이 검찰에서 조사받는 과정에서 밤 2시경까지 철야조사를 받고 1회 조사시의 진술을 변경하던 날(제2회 피의자신문조서 작성일, 1988.7.23.)에 그가 피고인의 처 공소외 3에게 전화하여 “피고인이 나( 제1심 공동피고인)로부터 돈 650만원을 받아가지고 그중 50만원은 한성기계 설비비용으로 주었고 300만원은 구청 산업과에 주었으며 나머지 300만원은 구청 환경과에 주었다고 진술하라. 그렇게 진술하면 검찰과 다 이야기가 되었으니 내 비용으로 변호사까지 선임하여 주겠으니 염려말라”는 취지로 말한 점 등에서 미루어 볼 때 1회 조사시의 진술과 다르게 번복진술하게 된 동기 또는 그 사유가 석연치 않은 점,(iv)위와 같은 과정으로 제1심 공동피고인은 자신의 진술을 번복하고 검찰은 그의 위 번복진술만으로 바로 피고인에 대하여 이 사건 사기의 점에 관한 공소사실을 인지하면서 피고인을 입건, 조사하고 그 과정에서 피고인이 범행을 부인하자 제1심 공동피고인은 불구속으로, 피고인은 구속하여 구공판한 점, (v) 공소외 1의 검찰에서의 진술과 원심법정에서의 진술에 의하면, 자신이 1987.10.경 제1심 공동피고인을 찾아가 공장등록을 신청할 것을 종용하고 그 신청서류 준비과정에서 그의 심부름으로 찾아온 피고인을 처음 만났을 뿐, 등록신청에 소요되는 비용 등에 관하여는 주로 제1심 공동피고인과 직접 상의 하였다고 진술하고 있는 점, (vi) 이 사건 배출시설 설치허가 담당공무원이었던 공소외 2 역시, 제1심 공동피고인이 경영하는 위 공장에 공장등록증이 발급되었다는 것을 알고 1988.4.초순경 자신이 위 공장 현장을 찾아가 제1심 공동피고인에게 배출시설 설치 및 그 허가를 받도록 지시, 독촉하였고 그후 제1심 공동피고인이 피고인을 자신에게 보내와서 피고인에게 배출시설업자를 소개하여 주었다고 진술하고 있는바, 도대체 1988.4.초순경 공소외 2의 독촉에 의하여 배출시설 문제가 처음으로 거론된 마당에 그 보다 앞선 같은 해 2월 초순과 말경에 각각 배출시설 담당공무원에게 전해주어야 된다는 명목으로 피고인이 자신을 기망하여 금 250만원을 편취하였다고 하는 제1심 공동피고인의 진술은 모순이라고 아니할 수 없는 점, (vii) 한편 제1심 공동피고인이 공장등록증 문제와 관련하여 1987.11.하순경 원심공동피고인 에게 금 50만원을 공여하고 강서세무서장 명의의 사실증명원 1매를 위조하여 받고, 또 1988.3.초순경 피고인의 무허가 가건물 단속차 나온 양평 1동 사무소 직원인 공소외 4에게 눈감아주는 명목으로 2차례에 걸쳐 도합 금 50만원을 건내준 부분에 있어서는 전적으로 제1심 공동피고인 자신이 처리하였음에도 그 보다 훨씬 중요하고 비용이 많이 드는 이 사건 공장등록증 발급문제와 배출시설 설치허가 문제에 있어서는 무직으로, 하는 일이 없이 이따금 용돈이나 얻어쓰면서 제1심 공동피고인 경영의 공장사물실에서 일을 도와주고 있던 피고인이 주도적으로 담당공무원들을 접촉하면서 돈을 건내준다는 명목으로 제1심 공동피고인으로부터 금 650만원을 편취하였다고 하는 것이 쉽게 납득할 수 없다는 점 등을 종합하여 볼 때 제1심 공동피고인의 진술은 신빙성이 없어 믿기 어렵다는 것이다.

4. Judgment of party members

Therefore, the lower court should compare the reasoning for rejecting each of the above evidence consistent with the facts charged of the instant fraud with the record and review the reasons why it is difficult to believe due to the lack of credibility.

According to the records, the defendant graduated from high school and went bankrupt on February 1987 and was playing without a certain occupation. Co-defendant in the first instance trial after graduating from middle school and transferred to other's office employees. Co-defendant in the second instance trial, while operating metal gambling business, two persons are friendly with the defendant's name and name after being aware of transaction relation at the time of the defendant's operation of construction material sales business. After the defendant's bankruptcy, even though the defendant's age is higher than Co-defendant in the first instance trial but the school is higher than that in the external relationship, the defendant frequently entered the above factory and tried to work in the external relationship of Co-defendant in the first instance trial and used money in the first instance trial without a certain occupation. Co-defendant in the first instance trial, Co-defendant in the first instance trial, who was issued a certificate of registration that became the issue in this case, or who was delivered a certificate of registration to the defendant's public official in charge of the first instance trial, the court below found the defendant's credibility in the first instance trial as well as the defendant's statement.

(A) The first instance court's statement that Co-defendant 1 made it difficult to reverse the money at the time of the first instance court's testimony (the statement and the prosecutor's statement prepared as of July 14, 198 and the first interrogation protocol prepared as of July 21) and did not give a bribe to the public official in charge, and as a result, Non-Indicted 1, who is the public official in charge of issuing factory registration certificate, did not receive money from the co-defendant 1, and it was only 300,000 won in the first instance court's indictments through Non-Indicted 5's non-indicted 1's statement and the first instance court's statement that it was hard for the prosecutor to reverse the money at the time of the first instance court's statement and the first instance court's statement that was written as of July 14, 198, and the first interrogation protocol prepared as of July 21, 198). The first instance court's statement that Co-defendant 1 provided a bribe to Co-defendant 3000, Ltd.

(B) As seen earlier, Co-Defendant 1 did not keep any material supporting that Co-Defendant 1 gave money to the Defendant at any time with the intention to deliver a bribe over several times, on the ground that Co-Defendant 1 did not keep the material to support that Co-Defendant 1 gave money.

(C) According to the records, the prosecutor revealed that the defendant was related to the case, and the focus of investigation was transferred from the first instance court to the defendant, and the co-defendant of the first instance court, who was transferred to the defendant directly or indirectly through another person, recommended that the defendant promptly end the case in cooperation with the prosecutor's office and the investigation so that he would not cause serious damage to the defendant. However, the defendant continued in contact with the lawyer or the person related to the case and did not respond to the investigation and did not respond to the investigation on August 4, 198. Thus, even if the co-defendant of the first instance court used a telephone as stated in the above paragraph (3) above, it seems that it was nothing more than that the co-defendant of the first instance court stated that the co-defendant of the first instance court cooperates with the defendant in the investigation, and therefore, it cannot be deemed that the motive or reason that the co-defendant reversed the statement of the first instance court, or that the decision of the court below did not seem to have been justified as determined by the court below.

(D) No reasonable ground exists to deem that it is related to the credibility of the statement of the co-defendant in the first instance trial that the prosecutor prosecuted the defendant against the co-defendant in the first instance trial with the statement of the co-defendant in the first instance trial alone by entering into, investigating, and binding the defendant in the crime of fraud.

(E) Although Nonindicted Party 1 made a witness in the court of the court below as a witness in the court of the court below's application and made a statement as set forth in Paragraph (v) above, it stated that he received money twice from the Defendant through an examination of substitution (the 6th protocol of interrogation of the Defendant in preparation of the prosecutor) before the prosecutor, and that he made a good request by the Defendant when he first received money from the Defendant at the underground stores of the court of first instance in the court of first instance, he made a statement that he was a former Seoul Government public official, and that he was a relative and a person was divided by introducing him as the above factory employee, unlike the above statement in the court of the court of first instance, as to the factory registration certificate as to the factory registration certificate, unlike the above statement in the court of first instance, it cannot be deemed that there was no credibility as decided by the court of first instance due to Nonindicted Party 1's statement before the prosecutor or the statement in the court of the court of original instance.

(F) Even if the statement of Nonindicted 2, a public official in charge of the permission for the installation of discharging facilities, is based on the statement at the court of first instance, which is the statement of Nonindicted 2, a public official in charge of the affairs of the permission for the installation of discharging facilities, the first instance court urged that the co-defendant should promptly apply for the permission for the installation of discharging facilities because he received the certificate of factory registration from the first instance court, and requested that the co-defendant in the first instance court introduced the installer of discharging facilities registered in the Environmental Office and let the business operator apply for the permission. Therefore, it is clear that the Co-defendant in the first instance court and the first instance court and the defendant contacted with the issue of the permission for the installation of discharging facilities at least before the receipt of the permission. Meanwhile, according to the response of the head of the first instance court to the inquiry request by the court below, the date of receipt of the permission for the installation of discharging facilities by the Co-defendant in the first instance court was the first instance court on April 1, 198.

(G) According to the records, Nonindicted 4, who is a public official in charge of the control of unauthorized Building, is related to the co-defendant 4's pro-friendly custody completion of the first instance trial, and thus, the issue of crackdown on Unauthorized Building was dealt with by Co-defendant 4 in the first instance trial. The co-defendant 4 of the lower trial, who is an employee of the tax office in which Co-defendant 4 traded in a usual transaction, is the employee of the tax office in the first instance trial, and thereby, he was forged and falsified by the head of Gangwon Tax Office through the co-defendant 4 of the first instance trial. Therefore, the above two issues related to this case are resolved by the Co-defendant 4 of the first instance trial, and only the issue of issuance of factory registration certificate and permission for the installation of emission facilities, did not deal with it by himself, and thus, it

(h) Ultimately, the reasoning of the lower court’s finding that the co-defendant’s statement in the first instance trial is not reliable is all acceptable.

In addition, in light of the following: (a) human relationship with the Defendant and the Co-Defendant in the first instance trial; (b) the Co-Defendant in the first instance trial presented a favorable attitude from the beginning to the court of first instance that he did not want to punish the Defendant; (c) there is no reasonable ground for the Defendant to make a false statement; and (d) there is no direct evidence for the lower court to acknowledge the facts charged in the instant case; and (c) the statement of the statement on the new and new knowledge of the prosecutor’s preparation that the lower court did not constitute a direct evidence to acknowledge the facts charged in the instant case; and (d) the statement at the court of first instance in the new and new court of the first instance on the part of the lower court, it is difficult to conclude

Nevertheless, the court below rejected the statement of Co-defendant of the court of first instance on the ground that it did not have credibility without reasonable grounds, and found the defendant not guilty on the ground that there is no evidence to prove the facts charged of the fraud of this case. The court below's judgment cannot be deemed to have been erroneous in finding the facts in violation of the rules of evidence, and it is obvious that such illegality has affected the conclusion of the judgment. Thus

5. Therefore, the part of the judgment of the court below that acquitted the defendant shall be reversed, and the case shall be remanded to the court below for a new trial and determination. It is so decided as per Disposition with the assent of all participating judges.

Justices Lee Jae-sung (Presiding Justice)