2017Do13457 Violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Embezzlement), Specific

Violation of the Act on Punishment, etc. of Economic Crimes (Misappropriation recognized)

Criminal Name: Occupational Breach of Trust, Perjury, and Bribery

A person shall be appointed.

Defendant and Prosecutor

Law Firm D Q2, Attorney B

Attorney DF

Seoul High Court Decision 2017No288 Decided August 18, 2017

December 12, 2017, 22

All appeals are dismissed.

The grounds of appeal are examined.

1. Judgment on the grounds of appeal by the prosecutor

For the reasons indicated in its holding, the lower court reversed the first instance judgment convicting the Defendant on the ground that there was no proof of crime regarding the charge of violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Misappropriation of Trust) and the offering of bribe to AK among the facts charged in the instant case.

Examining the reasoning of the lower judgment in light of the record, the lower court’s aforementioned determination is acceptable. In so determining, contrary to what is alleged in the grounds of appeal, there were no errors by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by

2. Judgment on the Defendant’s grounds of appeal

A. According to the records, while appealed against the judgment of the first instance, the Defendant asserted misconception of facts and misapprehension of legal principles along with unfair sentencing as the grounds for appeal, but on the fifth trial of the lower court, the Defendant withdrawn all the remainder, excluding the scope of profit and the part of offering of bribe to AK among the grounds for appeal as to mistake of facts and misunderstanding of legal principles, among the grounds for appeal on the misunderstanding of facts, the scope of profit and the part concerning the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Misappropriation of Trust). In such a case, the argument that the lower court’s withdrawn part

B. In a case where the court of fact-finding did not prove, on the basis of the crime prosecuted against the defendant, the motive or result of the crime, and the circumstances constituting a separate crime that are not included in the conditions of sentencing as prescribed by Article 51 of the Criminal Act, such as the circumstances after the crime, etc., as the core sentencing condition, even though it was not proven by evidence having probative value to the extent that it excludes a reasonable doubt, the determination of punishment is based on the heavy sentencing condition, and thus, constitutes the same substance as additionally punishing the defendant for an offense for which no prosecution has been instituted against the defendant, it would infringe on the principle of balance between crimes or the principle of responsibility beyond the illegality of the simple sentencing judgment. Thus, the defendant's assertion disputing illegality is legitimate grounds for appeal (see Supreme Court Decision 2008Do1816, May 29, 2008).

However, the circumstances listed by the court below on the grounds of sentencing can not be deemed as falling under the character and conduct of the offender and the result of the crime among the grounds listed on the conditions of sentencing under Article 51 of the Criminal Act, and it is proved by evidence with probative value to the extent that exclude a reasonable doubt. As such, it cannot be deemed that the judgment of the court below, taking into account the above reasons, has reached an infringement on the essential contents of the principle of balance or the principle of responsibility, contrary to what is alleged in the grounds of appeal.

3. Conclusion

All appeals are dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Ki-taik

Justices Park Poe-young

Justices Kim Jae-tae

Justices Kim Jae-in