205Gohap1058 Violation of the Aggravated Punishment, etc. of Specific Crimes (Bribery)

00, Public Officials

December 22, 2005

A defendant shall be punished by imprisonment for not less than two years and six months.

The number of days under detention prior to the rendering of this judgment shall be 58 days included in the above sentence.

20,000 won shall be additionally collected from the defendant.

Criminal facts

In January 2001 to February 2002, the Defendant served as the Tax Assistant (Class VII) Tax Assistant in the 00-year-old book, and served as the Tax Assistant (Class VI) Tax Assistant (Class VI) in the 00-year-old book. At the same time, the Defendant received a bribe from the tax official and the public official received one bribe in relation to his duties after receiving a complaint from the actual representative of the 30-year-old-dong, Yangcheon-gu, Seoul. On June 2001.

Summary of Evidence

1. Defendant's legal statement;

1. Each protocol of examination of suspect B by the prosecution;

1. Each prosecutor's statement about A, B, and C;

1. A statement of account transactions in a new bank;

1. Investigation report (examination of related case records, attachment), investigation report (31 - 02 - 481548 accompanying statement of account transactions)

Application of Statutes

1. Article applicable to criminal facts;

Article 2(1)2 of the Act on the Aggravated Punishment, etc. of Specific Crimes and Article 129(1) of the Criminal Act

1. Discretionary mitigation;

Articles 53 and 55(1)3 of the Criminal Act (Article 55(1)3 of the Criminal Act)

1. Inclusion of days of detention in detention;

Article 57 of the Criminal Act

1. Additional collection:

Article 134 of the Criminal Act.

According to each of the above evidence, the defendant is found to have received KRW 30 million as a bribe in his judgment through A, and in full view of the defendant's statement in this court, B's statement in the prosecutor's office, and the statement in the new bank account transaction statement, the defendant's 30 million won as A through B.

The fact that 5 million won has been returned may be recognized.

The following is the principle: (a) Article 134 of the Criminal Act provides that a bribe that is received in the course of bribery shall be confiscated and collected from a person who holds a bribe or money and valuables to be used for a bribe; and (b) as such, in cases where a bribe received by a person who has received a bribe returns it to a person who has received the bribe, it shall be confiscated and collected from the person who has received the bribe, but in cases where the bribe is not itself returned to the person who has received the bribe, it shall be collected from the person who received the bribe.

However, money is highly negotiable and is at the same value as it is at the same time, and it is consistent with the transaction common sense and social common sense to place emphasis on the value among them. In the Civil Act, (1) money is transferred along with possession and ownership, and only the issue of unjust enrichment remains (see Articles 249 and 250 of the Civil Act) and (2) where the monetary claim is to be paid in a certain kind of currency, if the monetary claim is to be paid in a certain kind of currency at the maturity of payment, the obligor is treated differently from other kinds of claims that require a specific purpose at the time of performance (see Articles 375 through 378 of the Civil Act). (3) Money claims do not arise in a non-performance situation unlike other claims, and in the case of non-performance of monetary claims, the obligee does not need to prove the amount of damages and there is no need to prove the amount of damages, and in light of Article 397 of the Civil Act, it cannot be viewed that there is no other special provision in the Civil Act.

In light of the above nature of the value of money, the confiscation and collection stipulated in Article 134 of the Criminal Act, where the consignee received money as a bribe from the receiver, consumeds it, deposited it in the bank, and then returned the amount equivalent to the same amount to the receiver, it shall be deemed that it would result in the result of double collection against the consignee, and that it would be too harsh for the consignee, and that it would be in violation of the spirit of the law, as such, if the consignee returned the same amount or some of it to the receiver, it shall be reasonable to collect it from the receiver to the extent of the return.

In addition, when a cashier's check issued by a credit financial institution is offered as a bribe, it would be consistent with the transactional norm to treat it like money.

Therefore, according to the above legal principles, KRW 5 million, which was returned by B to B, among KRW 30 million delivered by B to B, shall not be collected from the Defendant.

Although the reason for sentencing is the defendant's primary crime and is against the depth of the crime of this case, considering the fact that the defendant received a considerable amount of money of KRW 30 million as a bribe, the defendant conducts the tax affairs illegally after receiving a bribe, and there is a considerable amount of national tax loss, as well as the fact that the defendant is subject to criminal punishment instead of B, who is the representative of the above company, and that there is a substantial damage to the public's trust in tax administration due to the crime of this case, the sentence of sentence is inevitable.

Judge Lee Ki-taik,

Judges Kang Han-chul

Judges Chan-chan