[1] The case holding that Gap, the former execution secretary of the head of the Gu, was not guilty of the main facts charged that Gap received a bribe from Eul in the course of implementing a parking building project by taking advantage of the status of a public official, and all the ancillary facts charged that Eul received money from Eul with the knowledge of the fact that it is a bribe delivered to the head of the Gu for solicitation

[2] The case holding that Byung is not guilty on the ground that Byung's statement cannot be acknowledged in a case where Byung denies the fact that it received money in relation to the facts charged of acquiring third-party brains with the knowledge of the fact that Byung was a bribe delivered by the head of the Gu's wife to the head of the Gu for solicitation, and Byung stated that Byung reversed the existing statement and delivered money to Byung

[1] As to the main facts charged that Gap, a former execution secretary of the head of the Gu, received a bribe from Eul in the course of performing a parking building project by taking advantage of the status of a public official, and the preliminary facts charged that Gap's partial statements and Eul's statements made at the prosecutor's office are hard to recognize credibility excluding reasonable doubts, and there is no other evidence to acknowledge credibility, on the grounds that there is no other evidence to acknowledge it, the remaining evidence, other than the above part of the statements, are insufficient to acknowledge credibility, and all of the primary charges of violation of the former Act on the Aggravated Punishment, etc. of Specific Crimes (amended by Act No. 10210, Mar. 31, 2010) and the ancillary charges of the third party acquisition.

[2] In a case where the credibility of the statement made by Byung, who is the head of the Gu's wife, is at issue after Byung denies the fact that Byung received money from Eul who is a bribe delivered to the head of the Gu for the approval of the public parking lot business and for the provision of administrative convenience in the subway station construction, and Eul stated that Byung reversed the existing statement and delivered money to Byung by the prosecutor's office, the case holding that Eul's part of the statement made by the prosecutor's office is not the case where the circumstances leading up to such false statement cannot be accepted at all, and it cannot be viewed that the contents of the statement are consistent and that it is reasonable and objective, and thus the credibility of the statement cannot be acknowledged.

[1] Articles 132 and 133(2) of the Criminal Act; Article 2 of the former Act on the Aggravated Punishment, etc. of Specific Crimes (Amended by Act No. 10210, Mar. 31, 2010); Article 308 of the Criminal Procedure Act / [2] Article 133(2) of the Criminal Act; Article 308 of the Criminal Procedure Act

[2] Supreme Court Decision 2000Do5701 Decided June 11, 2002 (Gong2002Ha, 1720) Supreme Court Decision 2005Do4202 Decided February 14, 2008 (Gong2008Sang, 407) Supreme Court Decision 2008Do8137 Decided January 15, 2009 (Gong2009Sang, 183)

Defendant 1 and two others

Both parties

[Judgment of the court below]

Attorneys Park Jong-dae et al.

Incheon District Court Decision 2009Gohap211, 296, 370 Decided September 24, 2009

Of the lower judgment, the part against Defendant 1 and the guilty part against Defendant 3 shall be reversed.

The acquisition of a third-party brain product by Defendant 1 and Defendant 3 shall be acquitted, respectively.

The appeal by the defendant 2, the prosecutor's appeal by the defendant 2 against the defendant 2 and the not guilty part by the defendant 3 are dismissed, respectively.

The summary of the judgment against the defendant 1 and 3 shall be announced publicly.

1. Summary of grounds for appeal;

A. Defendant 1

Defendant 1 borrowed KRW 200 million from Nonindicted 1, and did not receive KRW 200 million in relation to the ○○○ Dong Public Parking Building Business. In addition, Defendant 1’s receipt of KRW 220 million from Nonindicted 1 should be evaluated as identical in nature. However, the lower court did not recognize it as a bribe for KRW 20 million, and did not consider it as a bribe for the remaining KRW 20 million in relation to the ○○ Dong Public Parking Building Business.

B. Defendant 2

(1) misunderstanding of facts

Although Defendant 2 received golf, entertainment, and overseas travel from Nonindicted 1, 2, etc. (However, Defendant 2’s assertion that the frequency and amount of entertainment are more than actually exaggerated), there is no fact that Defendant 2 received money and valuables of KRW 3 million from June through July 7, 2005, and KRW 2 million from September 2005, and there is no fact that a quid pro quo related to the ○○ Dong Public Parking Building project is recognized.

(2) The assertion of unreasonable sentencing

The punishment of one-year imprisonment with prison labor determined by the court below against Defendant 2 is too unreasonable.

C. Defendant 3

(1) misunderstanding of facts or misapprehension of legal principles

Defendant 3 received KRW 20 million from Co-Defendant 1 in relation to the authorization and permission of the public parking building in Bupyeong-gu Incheon Metropolitan City on July 2005 or around September 23, 2005. In addition, since the public parking building project in ○○ Dong was actually completed on September 1, 2005, KRW 100 million received thereafter is not a bribe. In addition, Defendant 3 received KRW 50 million from Defendant 1 in relation to the construction project in the Bupyeong-gu Office Station in the subway Line 7 on August 23, 2005.

(2) The assertion of unreasonable sentencing

The punishment of imprisonment with prison labor of three years determined by the court below against Defendant 3 is too unreasonable.

(d) A prosecutor;

(1) misunderstanding of facts or misapprehension of legal principles

Of the facts charged against Defendant 1, the violation of the Act on the Aggravated Punishment, etc. of Specific Crimes, which is the primary charge against Defendant 1, the receipt of KRW 69.6 million in relation to the ○○ Dong Housing Site Development Project, the demand for bribe of KRW 200 million in relation to the ○○○ Dong Housing Site Development Project, and the violation of the Business Affairs of Licensed Real Estate Agents and Report of Real Estate Transactions Act, and the violation of the Act on the Aggravated Punishment, etc. of Specific Crimes among the facts charged against Defendant 3, constitutes evidence of a crime. However, the court below acquitted Defendant 1 on the ground that each of the above facts charged constitute a case where there is no proof of a crime. The court below erred by misunderstanding the facts against the rules of evidence or misunderstanding the legal principles, which affected the conclusion of the judgment.

(2) The assertion of unreasonable sentencing

The punishment of imprisonment with prison labor for 2 years as determined by the court below against Defendant 1, the suspended sentence of 3 years, the imprisonment with prison labor for 1 year as determined by Defendant 2, and the imprisonment with prison labor for 3 years as determined against Defendant 3 is too uneased and unreasonable.

2. As to the grounds of appeal by Defendant 1 and the grounds of appeal by the prosecutor against Defendant 1

A. Summary of the facts charged against Defendant 1

【Summary of Main Facts charged】

Defendant 1 worked as a performance secretary for the head of Bupyeong-gu who is a public official of Grade VI in extraordinary civil service from July 2002 to January 2006. From May 6, 2005 to Nonindicted 1, Defendant 1 showed “○○ Building Building Project Plan” with “○○ Building Project Plan” in Bupyeong-gu, and consulted on the same promotion of ○○○ Building Project in Bupyeong-gu, and prepared to implement the project by introducing Nonindicted 1 with Nonindicted 2 to raise funds in connection with the above parking building project.

On July 2005, Defendant 1 received KRW 20 million from Nonindicted 1, who was promoting ○○○dong Public Parking Building Project at the time in the Bupyeong-gu Busan Bupyeong-gu Park, Bupyeong-gu, Incheon, and around August 2005, Defendant 1 suggested to the effect that “In the situation where the implementation of the above parking building project is not carried out rapidly, it would be better to use his hand in order to make the above parking building project feasible,” and requested Nonindicted 1 to prepare funds amounting to KRW 200 million, and around that time, he received KRW 85 million from Nonindicted 1 on the side of the above Bupyeong-gu, Bupyeong-gu, Incheon, and received KRW 15 million from Nonindicted 1 at the same place on September 2005, and provided and received KRW 200 million from Nonindicted 1,115 million from Nonindicted 1 to other public officials, and provided and received KRW 300,000,000 from other public officials with the authority to take advantage of the status of the above public officials.

[Summary of the Preliminary Facts charged (However, the prosecutor added the Preliminary Facts to the issuance of third-party brain products at the court below, but changed the Preliminary Facts from the trial to the acquisition of third-party brain products)]

On April 200 through June 2, 2005, Defendant 1 heard the horses from Defendant 3, the denying head of Bupyeong-gu Office, that there is a lack of operational funds necessary for the head of the Gu’s political activities. At the time, Defendant 1 was willing to raise operating funds required by the head of the Gu by using a proposal for the private capital inducement building project for the public parking lot site in the Bupyeong-gu Office of Bupyeong-gu Office in relation to the implementation of the Incheon District Private Capital Inducement Building Project.

At that time, Defendant 1 decided to see the project proposal for the above ○ Dong Parking Building project and to promote the above project together, and Defendant 3 reported to the effect that Defendant 3 would want to raise necessary funds through the ○○ Dong Parking Lot project, and asked Defendant 1 to help it if the project is carried out.

Around August 2005, when the above parking lot business cannot proceed as scheduled, Defendant 1 suggested to the effect that it is desirable for Defendant 1 to prepare and deliver funds of KRW 200 million to Non-Indicted 1 to the side of Bupyeong-gu.

Accordingly, around August 2005, Nonindicted Party 1 and Nonindicted Party 1 sent bags and shopping bags containing KRW 85 million in cash at the Korea Green Hospital Underground Parking Lot located in Bupyeong-gu Incheon Metropolitan City, Bupyeong-gu, Incheon, to Defendant 1. After that, Defendant 1 and Defendant 3’s dwelling place located in Bupyeong-gu, Incheon, Bupyeong-gu, ○○○○○ (hereinafter omitted), together with Nonindicted Party 1, sought to the effect that the said KRW 100 million should help Defendant 3 obtain the authorization and permission for the ○○dong parking lot business, and provided Defendant 3 with the said KRW 100 million.

On September 2005, Defendant 1 continued to receive KRW 115 million from Nonindicted 1 at the above Green Hospital office, and attempted to deliver one copy of the check with KRW 100 million to Defendant 3, but Defendant 3 refused to do so on the ground that it was a large check, Defendant 1 made cash KRW 100 million by depositing it into the account in the name of Nonindicted 3 of his wife and making cash withdrawal over several days, and Defendant 3 made a solicitation to the effect that Defendant 3 would help obtain the authorization and permission of the ○○dong Parking Lot business, and deliver the above KRW 100 million to Defendant 3.

Accordingly, Defendant 1 received a total of KRW 200 million from Nonindicted 1, knowing that it is a bribe delivered to the side of the Bupyeong-gu Head of the Gu for the authorization and permission of the above ○○ Dong public parking lot business.

B. The judgment of the court below

(1) Judgment on the main facts charged (not guilty in the grounds)

As to Defendant 1’s receipt of KRW 200 million from 0,000 to 10,000, the lower court consistently stated that Nonindicted Party 1 and Nonindicted Party 1’s statement was 00,000 won as to the above facts charged, and that Nonindicted Party 2’s receipt of KRW 100,000 from 0 to 10,00,00,00,000 was 10,000,000,000,000,000,000,000 won was 0,000,000,000,000,000 won was 0,000,000,000,000,000 won was 0,000,000,000,000,000 won was 10,000,000,000,00 won was 10,000,00.

(2) Judgment on the conjunctive charges

The court below found Defendant 1 and his defense counsel guilty of the conjunctive charges and rejected them for the following reasons.

Defendant 1 and his defense counsel consistently asserted that 200 million won was merely borrowed from Nonindicted 1 to Nonindicted 5’s office. As such, Defendant 1 and Nonindicted 1 did not have a large amount of money transaction up to KRW 100,000 before and after July 205, and Defendant 1 did not have a large amount of money transaction between Defendant 1 and Defendant 1. Nonindicted 2 and Defendant 4 agreed to share the ○○dong Parking Building Business, and Defendant 1 did not have a large amount of money transaction to the effect that it was difficult for Nonindicted 2 and Defendant 4 to use the above 3’s cash transaction with the above 100 million won, despite the fact that Nonindicted 1 and Defendant 3 did not have a large amount of money transaction with the above 10 million cash transaction. However, Defendant 1 and Defendant 3 did not have a large amount of money transaction to the extent that they did not have any special interest.

C. Judgment of the court below

Before the judgment on the assertion of mistake of facts or misapprehension of legal principles by Defendant 1 and the prosecutor, the prosecutor applied for changes in the indictment with respect to Defendant 1 by ex officio, and the prosecutor applied for changes in the indictment with respect to the ancillary facts charged against Defendant 1 from delivery of third-party brain water to acquisition of third-party brain water. Since a member permitted this and changed the object of the trial on this part, the part against Defendant 1 among the judgment below was no longer maintained. However, even if there was a ground for ex officio reversal, the argument of Defendant 1 and the prosecutor, such as mistake of facts, are still subject to the judgment

(1) Issues

According to the records of this case, the facts that Defendant 1 received a total of KRW 220 million from Nonindicted 1 three times are evident. Since the crime of violation (Bribery) of the Act on the Aggravated Punishment, etc. of Specific Crimes, which is the primary facts charged, is premised on the establishment of the crime of acceptance of bribery, Defendant 1 must have awareness and intent as to the receipt of the above KRW 220 million in return for arranging matters (related to ○○ Dong Parking Building Business) belonging to other public officials' duties. In order to establish the crime of acquisition of third-party brains, which is the ancillary facts charged, Defendant 1 should have awareness and intent as to the receipt of the above KRW 220 million in return for mediating matters (related to ○○ Dong Parking Building Business) delivered to the head of Bupyeong-gu Office.

However, Defendant 1 denies the criminal intent to the effect that the above KRW 220 million is not received as a bribe in relation to the ○○ Building Project, but is merely a mere loan, and this is examined.

(2) Relevant evidence

(A) Whether Defendant 1’s prosecutorial office credibility of certain statements

Defendant 1 denies the criminal intent to the effect that the above KRW 220 million is merely a loan, such as the statement at the court below and the court of the first instance at the prosecution. However, among Defendant 1’s statements at the prosecutor’s office, part of the statements after April 1, 2009 (the fifth prosecutor’s protocol of interrogation of suspect to the prosecution against Defendant 1) is delivered in relation to the above 220 million won of the above 20 million won of the above 200 million of the above 20 million of the statement at the prosecutor’s office, it is a question as to whether it is credibility of the statement.

Therefore, Defendant 1 stated that Nonindicted Party 1’s statement was reversed on the 0th day of the first instance court’s ruling, and that Nonindicted Party 1’s statement was not delivered to Nonindicted Party 1, and that Nonindicted Party 1’s statement was not delivered to Nonindicted Party 0 on the 10th day of the first instance court’s ruling, and that Nonindicted Party 1’s statement was not delivered to Nonindicted Party 1, 200,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,00,00,00,00,00.

(B) Nonindicted 1’s statement

① At the court of the court below, Nonindicted Party 1 led Defendant 1 to the fact that he sent 200 million won to the Bupyeong-gu head in connection with the ○○dong Parking Building Project. At the court below, Nonindicted Party 1 appeared as a witness and the court below proposed a plan for the ○○dong Parking Building Project on May through June 6, 2005, and stated that Defendant 1 was asked to introduce a building company interested in the above project as a project against retirement of the head of the △△△△△, and that he introduced Nonindicted Party 2, a construction business operator, to Defendant 1 on June 2005. Around that time, Nonindicted Party 1 was introduced Defendant 1, a person who helps Defendant 1 promote the above project.

② However, at the lower court and the first instance court, Nonindicted Party 1 introduced Nonindicted Party 2 as Defendant 1’s relative and head of the Gu’s execution expenses, and did not have any special opinion. At the time, Defendant 1 proposed the above parking building project, but there was no reason for Defendant 1 to attend the meeting, and Defendant 1 did not have a role as Defendant 1’s execution expenses, and Defendant 1 did not appear to have been present at that 00 million won. Defendant 1 stated that it was only necessary for 00 million won, and Defendant 1 did not have a separate statement from Defendant 1 to Defendant 2 at that time, and Defendant 1 did not have a separate statement from Defendant 1 to Defendant 300 million won. Defendant 1 did not have a separate statement from Defendant 2 at that time. Defendant 1 did not know that it was necessary for 00 million won.

③ Meanwhile, in light of the overall contents of the statements made by Nonindicted 1 at the lower court and the trial court, at least, it appears that Nonindicted 1 did not explicitly state that the said money should be given as a bribe in relation to the ○○ Dong Parking Building Project at the time of delivering money to Defendant 1, and it is evident that Defendant 1 did not hear the explicit explanation from Defendant 1 on the name or the user of the said money. Accordingly, it is difficult to believe that part of the statement made by Nonindicted 1, which appears contrary thereto, is in violation of this.

(C) Each statement, etc. made by Nonindicted 2, 4, 11, 12, 13, Defendant 2, Nonindicted 9, and 14

① At the court of the court below, around May 2005, Nonindicted 2 (Investors involved in the parking building project) disbursed approximately KRW 150 million upon receiving the proposal for the parking building project from Nonindicted 1. Defendant 1, around July 2005, he first met with Nonindicted 1, and at the time Nonindicted 1’s eye, he was unable to ask Defendant 1 for the case of the parking lot project (after several times, Defendant 1 did not talk about the case of the parking lot project, but the talk about the case of the parking lot project among them). From the end of 2006 to the beginning of 207, Defendant 1 and Defendant 4, who was a joint investor, were to lend money to Defendant 1, and Defendant 1, who made a statement to the effect that “I wish to return money to Defendant 1, who would have lent money to Defendant 1.”

② At the court of the court below, Nonindicted 4 (Investors Related to Parking Building Project) explained at the court of the court below, “Defendant 1 first Manaon’s personnel affairs at the end of 2006 or at the beginning of 2007, and the circumstances (it is so far that Nonindicted 1 lent money to Mana, not on a day, but on a long-term basis. I want to receive money for a long time. I want to receive it as soon as possible.” The parking lot was prepared by Defendant 1’s attempt to resolve this day in any form. In relation to the building project, the money collected was entirely managed by Nonindicted 1.

③ Nonindicted 12 (Punishmentd Nonindicted 4) at the lower court’s court’s trial, around May 2005 through June 6, 2005, upon receipt of a request from Dong students to analyze business feasibility in relation to the ○○ Dong Parking Building Project, and Defendant 2 and Nonindicted 11, etc., together with Nonindicted 1, etc. around summer 2005, stated that Defendant 1 was the parking lot business case so far.

④ Nonindicted 11 (the director general of the Bupyeong-gu Economic Environment Bureau) stated at the court of original instance that “Defendant 1 did not talk or talk about the parking lot business”.

⑤ Nonindicted 13 (Chief executive Director of Bupyeong-gu Office Traffic Administration) made a statement at the court of original instance that the project related to a parking lot is under the duties of the witness, but Defendant 1 did not ask the witness about the building project at the time.

⑥ 피고인 2(부평구청장 비서실장)는 검찰에서「 공소외 1은 피고인 1의 친구로 2005년경 피고인 1의 소개로 알게 되었고, 공소외 2도 그 무렵 공소외 1의 소개로 알게 되었는데, 당시 공소외 1은 부평 다사롬병원에서 일하고 있었고, 공소외 2는 건설사업을 하고 있는 것으로 소개받았다. 평소 피고인 1은 비서실에 자신의 지인이 찾아오면 비서실장인 저에게 의례적으로 인사를 시켜주었는데, 2005년경 공소외 1이 비서실로 찾아 와 피고인 1이 저에게 공소외 1을 소개시켜 주어 안면을 텄으며 피고인 1이 공소외 1을 소개하면서 저에게 공소외 1에 대하여 ○○동 공영주차장사업에 관심을 가지고 있다는 말을 해주었다.」고 진술하였다. 한편 피고인 2는 원심 법정에서 2005. 6.경 피고인 1의 소개로 공소외 1을 처음 만났지만 당시 공소외 1이 병원 사무장으로 일하기 때문에 구정업무 하는데 좋은 측근이 될 수 있다고 해서 소개받았고, 민자 주차장건설사업에 대해서는 그 이후에 알게 되었다고 진술하였다.

7) Nonindicted 9 (Defendant 1’s obligor) borrowed KRW 70 million from Defendant 1 to March 2004 at the prosecutor’s office and the trial court, but did not prepare a loan certificate at the time. Nonindicted 9 (Defendant 1’s obligor) borrowed additional KRW 100 million on or around August 9, 2005, or paid KRW 70 million in front of Defendant 1’s father’s house on or around August 2005.

④ Nonindicted 14 (Defendant 1’s debtor) borrowed money from Defendant 1 to Defendant 30 million won at the end of 2003 through early 2004, and additionally borrowed money in addition to KRW 25 million after the 203-month period. At the time, Nonindicted 14 did not prepare a loan certificate with friendship-gu between the two and the three-month period. Around 2006 upon Defendant 1’s request to prepare a loan certificate, Nonindicted 1 made a statement to the effect that the loan certificate was 200 million won.

9) Other evidences submitted by the prosecutor include the statement of performance (the fact that Defendant 1 was to pay the sum of KRW 155,00,000 to Nonindicted 2 and 4 on February 6, 2007), the business agreement, the copy of the Incheon District Court Decision 2006Kadan3580 of the Incheon District Court Decision, the copy of the Incheon District Court Decision 2006Kahap581 of the Incheon District Court Decision, the personal entry and departure status of Nonindicted 1, and the personal entry and departure status of Defendant 1 (the fact that Defendant 1 left Korea on October 2, 2005 and entered Korea on the 6th of the same month).

(3) Determination

The above evidence, Defendant 1, and Nonindicted 1’s statement (excluding the part rejected at the above) and the materials submitted by the defense counsel of the Defendants in the original trial and the trial of the lower court, and the fact that: (a) Defendant 1 found the plan to operate the ○○ Building Project to Nonindicted 1 on or around May 6, 2005 (However, there is a difference between Nonindicted 1 and Defendant 1’s statement about the circumstance; (b) Defendant 1 was introduced from Nonindicted 1 to Nonindicted 2 (However, there is a difference between Nonindicted 1 and Defendant 1’s statement about the circumstance); (c) introduced Nonindicted 1 and Nonindicted 2, who was found in the office of the head of the Gu’s secretary, to Defendant 2, who was the chief of the Non-Indicted 1 and Nonindicted 1’s statement; (d) requested Nonindicted 1 to provide money for the following reasons: (e) around July 2005, around 2005; and (e) around KRW 15 million, around 2005, around 2005.

그런데 위 증거들 및 위에서 인정한 사정(특히 위 주차빌딩 사업계획안 교부와 금전 수수의 시점의 밀접성)만으로는 아래와 같은 사정, 즉 ① 피고인 1이 공소외 1에게 위 주차빌딩사업과 관련한 사업제안서를 교부하긴 하였으나, 피고인 1은 공소외 1과 그 전부터 친구지간이었고, 공소외 1 스스로도 위 주차빌딩사업에 관하여 피고인 1과 협의할 이유도 없었고 피고인 1의 역할도 없었다고 진술한 점, ② 피고인 1이 비서실장인 피고인 2에게 공소외 1 등을 소개시켜 주었다고 하나, 피고인 2는 평소 피고인 1은 비서실에 자신의 지인이 찾아오면 비서실장인 자신에게 의례적으로 인사를 시켜 주었다고 진술한 점, ③ 피고인 1은 공소외 1로부터 공소외 2를 소개받기는 하였으나, 공소외 2는 피고인 1과는 위 주차빌딩사업과 관련하여 특별한 이야기를 나눈 적이 없다고 진술한 점, ④ 피고인 1은 공소외 1로부터 돈을 교부받을 당시 그 용도를 밝히지 아니하였고, 공소외 1도 피고인 1이 책임을 지는 돈이므로 어디다 쓰는지 모르고 그냥 만들어서 줬다고 진술하고 있는 점, ⑤ 피고인 1이 공소외 1로부터 위 2억 2,000만 원을 교부받으면서 차용증을 작성하지 아니한 것이 이례적이긴 하나, 피고인 1과 친구지간인 공소외 9, 14는 피고인 1과의 돈 거래에 있어서 차용증을 작성하지 아니하였다고 진술하고 있고, 공소외 1 또한 피고인 1을 매우 신뢰하고 있었던 것으로 보이는 점, ⑥ 또한 위 2억 2,000만 원 중 전부가 현금으로 교부된 것도 아니고(8,500만 원만 현금으로 교부되었다), 공소외 1은 원심 법정에서「처음에는 저희 쪽에서 현금으로 주었지만, 두 번째는 수표로 주면서 부담스러워 할 것 같아 “현금으로 줘야 되는 것 아니냐”라고 하니까 피고인 1이 “괜찮다.”라고 하면서 받아간 기억이 있다」고 진술한 점, ⑦ 한편 피고인 1이 공소외 1로부터 교부받은 위 2,000만 원 중 상당부분(990만 원)이 장모인 공소외 5 명의의 정기예금계좌에 입금되었고, 위 2억 원 중 일부(약 1억 원)는 피고인 1의 부친( 공소외 8) 및 친구( 공소외 10) 등에 대한 채무변제 또는 금융기관에 대한 대출원리금 변제조로 사용된 것으로 보이며, 이외에도 피고인 1은 당시 시의원에 출마할 뜻을 품고 있었기 때문에 상당한 경비가 필요하였던 것으로 보이는 점( 피고인 1은 2005. 7. 초순경부터 같은 해 10.경까지 모집책을 통하거나 자신이 직접 한나라당 책임당원 2,277명을 모집하기도 하였는바, 이에는 시의원 출마를 위한 자신의 이해관계도 작용하였을 것으로 보인다), ⑧ 피고인 1이 공소외 1과 함께 태국여행을 간 사실은 인정되나, 이는 공소외 1로부터 금원을 교부받은 이후인 2005. 10.경의 사정일 뿐 아니라 자신의 경비는 스스로 부담한 것으로 보이고, 공소외 1 또한 피고인 1이 당시에 책임당원 모집일 때문에 여름휴가도 못 가고 하여 먼저 태국여행을 제안한 것이라고 진술한 점, ⑨ 특히 피고인 1은 공소외 1에게 위 2억 2,000만 원 중 일부를 빠른 시일 내에 변제한 것( 공소외 1 스스로도 2006. 3.경까지 7,000만 원 내지 9,000만 원을 돌려받았다고 진술하였다)으로 보일 뿐만 아니라 그 후에도 공소외 1이 공소외 2, 4로부터 위 돈을 마련하였음을 알게 되자 이들에 대하여도 2007. 2. 6. 자신의 명의로 이행각서(수사기록 27쪽)를 작성하여 주었고, 또한 공소외 1은 피고인 1에게 위 2억 2,000만 원을 교부할 무렵 피고인 1로부터 하남시 지역주택조합의 조합원 딱지를 넘겨받아 이를 소지하고 있었던 점 등에 비추어 보면, 피고인 1의 변소(차용금 주장)를 뒤엎고 위 2억 2,000만 원이 위 ○○동 주차빌딩사업에 관한 뇌물이라거나 피고인 1이 위 2억 2,000만 원을 수수함에 있어 알선수뢰 내지 제3자뇌물취득의 범의가 있었다고 섣불리 단정하기는 어렵다(원심이 예비적 공소사실을 유죄로 인정하면서 피고인 1의 주장을 배척한 이유를 감안해 보더라도 이와 같은 판단에는 영향이 없다).

Therefore, it is difficult to recognize the credibility of part of Defendant 1’s statements (the prosecutor’s statement after April 1, 2009) and part of Nonindicted Party 1’s statements at the prosecutor’s office, which seem to correspond to the primary and conjunctive facts charged in the instant case, with the exception of the above partial statements, for which it is difficult to recognize credibility, the remaining evidence, other than each of the above statements, alone, is insufficient to recognize the conviction of the primary and conjunctive facts charged in the instant case, and there

D. Sub-committee

Therefore, among the judgment below, there is a ground for ex officio reversal of the part against Defendant 1, and since the primary facts charged and the ancillary facts charged against Defendant 1 are all cases where there is no proof of crime, Defendant 1’s assertion on this point is with merit.

3. Determination on the grounds of appeal by Defendant 2 and the prosecutor's appeal against the same defendant

A. Judgment on the mistake of facts by Defendant 2

Defendant 2’s defense counsel at the lower court also asserted the same as the grounds for appeal on this part, and the lower court rejected the above assertion on the grounds as stated in its reasoning (see, e.g., Supreme Court Decision 17 to 22.). Examining the above judgment of the lower court compared with the records, the lower court’s judgment is just and it is not erroneous in misunderstanding of facts (On the other hand, Defendant 2 asserted that the frequency or amount of entertainment recognized by the lower court was in fact exaggerated, but according to the evidence duly adopted and examined by the lower court, Defendant 2 received money and entertainment equivalent to KRW 1,273,00 from Nonindicted 1,2, etc. in relation to the public parking lot business at ○○dong, as indicated in the lower judgment, can be recognized).

Therefore, Defendant 2’s ground of appeal on this part is without merit.

B. Judgment on the prosecutor's misconception of facts or misapprehension of legal principles

Based on its stated reasoning and evidence determination, the court below held that Defendant 2 was acquitted of the charge of receiving KRW 69.6 million in relation to the ○○ Dong Housing Site Development Project, 200 million demand for bribe related to the ○○ Dong Housing Site Development Project, and violation of the Act on Business Affairs of Licensed Real Estate Agents and Report of Real Estate Transactions (see, e.g., the judgment of the court below 57 to 72), based on comparison with the above judgment of the court below with the records, the judgment of the court below is just, and there is no error of law by mistake of facts or by misunderstanding of legal principles as pointed out by the prosecutor, and thus, the prosecutor's ground for appeal on

C. Determination on the assertion of unreasonable sentencing by Defendant 2 and the prosecutor

Defendant 2 appears to have not actively demanded money, goods, etc. first, and there are no criminal records for the same kind of punishment, etc. considering the circumstances favorable to Defendant 2.

However, Defendant 2 has a high possibility of criticism in light of the following: (a) Defendant 2, while serving as the secretary of the Bupyeong-gu Office, received money and other valuables for the arrangement of matters (related to the ○○ Dong Parking Building Project) that belongs to the duties of other public officials of the Bupyeong-gu Office; (b) thereby impairing the social trust in purchasing and fairness in the duties of public officials; and (c) the number of times he received entertainment and money and other valuables from Nonindicted 1, etc. exceeds ten times; and (d) the total sum of the amounts exceeds KRW 12.

In light of other sentencing conditions stipulated in Article 51 of the Criminal Act, such as the Defendant’s age, character and conduct, environment, etc., the sentence imposed by the lower court is deemed to be within the appropriate scope of sentencing, and is not deemed to be too heavy or unreasonable. Therefore, all of the grounds for appeal by the Defendant 2 and the Prosecutor are without merit.

D. Sub-committee

Therefore, all appeals filed by Defendant 2 and the Prosecutor against Defendant 2 are without merit.

4. Determination on the grounds for appeal by Defendant 3 and the grounds for appeal by the prosecutor against the same defendant

A. Judgment on the mistake of facts or misapprehension of legal principles by Defendant 3

(1) Summary of this part of the facts charged against Defendant 3

(A) The acquisition of third-party brain related to the public parking lot of ○○ Dong

Defendant 3, as the denial of △△△△ by the head of Bupyeong-gu, has taken charge of various management of funds necessary for political activities of the head of the Gu, such as

Around April 2005 to June 2005, Defendant 1, who had been working as the performance secretary for the head of Bupyeong-gu Office, requested the head of the Gu to prepare money to the effect that there is a lack of operating funds necessary for the political activities of the head of the Gu. Accordingly, Defendant 1 discussed with Nonindicted 1 by promoting the construction of parking buildings through private investment in the public parking lot site located in Bupyeong-gu Incheon Metropolitan City, Bupyeong-gu, Seoul, for the purpose of raising funds to be delivered to the head of the Gu. After considering Defendant 3’s intention to find out and raise funds necessary for the above parking lot project, Defendant 1 asked Defendant 1 to do so.

After that, from July 2005, the Bupyeong-gu Office decided to promote the above public parking lot business and requested the Incheon Metropolitan City to revise the district unit plan to provide budget support necessary for the purchase of the site and allow many commercial buildings in the parking building. around August 2005, Defendant 1 made a proposal to the effect that it is desirable to prepare and deliver the amount of KRW 200 million to Non-Indicted 1 to the side of the Bupyeong-gu Office in order to promote the parking lot business, and Non-Indicted 1 prepared KRW 200 million along with Non-Indicted 2 and 4 who participated in the parking lot business from August 2005 to September 20, 2005, and delivered it twice to Defendant 1.

On August 2005, Defendant 3 received a request from Defendant 1 to the effect that the authorization or permission for the public parking lot business of Bupyeong-gu, Incheon (hereinafter referred to as the “detailed address omitted), along with Defendant 1’s solicitation that ○○○○○dong (hereinafter referred to as Defendant 3’s residence), Defendant 1 received a bags and shopping bags containing cash of KRW 100 million from Defendant 1 to the same purport in the above residence of the police officer on September 2005. Accordingly, Defendant 3 received a total of KRW 200 million from Defendant 1, even though he was aware that the bribe was given to the above head of Bupyeong-gu, Incheon. In relation to the authorization and permission for the public parking lot business of ○○dong (hereinafter referred to as the “public parking lot business”).

(B) The point of acquiring third-party brains in relation to the construction of Bupyeong-gu Office Station 7 subway lines

On June 2005, SK Construction constituted a consortium with △△ Construction, etc. of the Incheon Construction Business chain, and ordered the construction of the Bupyeong-gu Office of Seoul subway from the Incheon Urban Railroad Construction Headquarters for the extension section 706 of the Incheon Urban Railroad Act.

Around July 2005 through August 8, 2005, Non-Indicted 16 of the above △△ Construction’s Handball team leader requested the head of the Gu to consider convenience for Defendant 1 to install a field office and building materials field display room, etc. in the neighboring neighborhood park near Bupyeong-gu Office. Around that time, Non-Indicted 17 instructed the head of the Gu to prepare cash amounting to KRW 50 million so that it can be delivered to Non-Indicted 17, who is the head of the KS construction site office, and in accordance with the direction, Non-Indicted 17 prepared a door containing cash amounting to KRW 50 million and delivered it to Defendant 1.

Defendant 3: (a) around August 23, 2005, around August 23, 2005, explained that Nonindicted 16 of △△ Construction was the money created by Defendant 1 in connection with the Bupyeong-gu Station Construction in the subway Line 7, the subway lines; and (b) received a bank with KRW 50 million in cash from Defendant 1.

As a result, the Defendant knowingly received KRW 50 million from Defendant 1 with knowledge that it is a bribe delivered to the Bupyeong-gu head under the pretext of changing various administrative convenience, such as the establishment of field offices, in connection with the above Bupyeong-gu project.

(2) The judgment of the court below

The lower court rejected Defendant 3 and his defense counsel’s assertion on this part of the facts charged for the following reasons.

먼저 피고인 1의 법정진술에 대해서는「 피고인 1과 공소외 1 사이에 2005. 7.경 이전에는 약 100만 원을 전후한 돈 거래만이 있었을 뿐 수천만 원에 이르는 거액의 돈 거래를 한 사실이 없는 점, 공소외 1은 ○○동 주차빌딩사업을 같이 하기로 약정한 공소외 2, 4와 함께 피고인 1에게 건네준 돈 2억 원을 마련하였고 공소외 2, 4에게 자동차 트렁크에 실려 있던 현금을 직접 보여주기까지 한 점, 피고인 1과 피고인 3이 누차 진술하다시피 공소외 1이 돈이 많은 재력가가 아님은 물론 자신에게 별다른 이익이 없음에도 2억 원이나 되는 큰 돈을 별다른 친밀관계가 없는 다른 사람으로부터 마련하면서까지 선뜻 피고인 1에게 빌려줄 만한 사람으로는 보이지 않는 점, 통상적인 금전대여라면 위와 같이 큰 금액을 거래하는 경우 차용증 등 증거자료를 남기거나 증거자료의 용이한 확보·금전 이동의 편의를 위해 계좌거래를 하는 것이 일반적인데 이 사건의 경우 차용증이 없었음은 물론 공소외 1이 피고인 1에게 직접 현금을 건네어 주거나 거액의 수표를 건네주었던 점, 공소외 1이 단순히 금전대여를 하는 것이라면(계좌이체를 하지 않는다고 하더라도) 간단히 수표를 건네주는 것으로도 충분함에도 불구하고 2005. 8.경 공소외 2, 4와 함께 복잡한 현금화 절차를 거쳐 현금 8,500만 원을 마련한 점, 위와 같이 힘들게 마련하였고 부피도 꽤나 큰 현금 8,500만 원을 비교적 사람들의 눈에 띄기 쉽고 공소외 1이 모르는 다른 사람들이 있던 아파트 테니스장에서 주었을 것이라는 점도 쉽게 납득되지 않는 점, 피고인 1이 2005. 9.경 공소외 1로부터 거액의 수표를 받게 되자 복잡한 현금화 절차를 거친 점, 피고인 1· 2가 위에서 살펴본 바와 같이 공소외 1, 2 등의 부담으로 그들과 같이 태국여행을 다녀온 점, 공소외 1이 피고인 1에게 2억 원을 준 시점을 전후하여 공소외 1, 2, 4 등이 피고인 2, 공소외 11 등 부평구청 및 인천시청의 공무원들을 많이 만났던 점, 피고인 1은 최초 검찰에서 진술할 당시 공소외 1로부터 받은 돈은 단순 차용금이라고 주장한 바 있으나 검찰 조사 당시에는 “ 공소외 1로부터 받은 1억 원 짜리 수표는 친구 공소외 9에게 빌려주었고 2005. 9. 14. 공소외 3 명의의 계좌에 입금된 1억 원은 바로 인출해서 공소외 1에게 돌려주었다.”고 진술하는 등 매번 법정에서 진술한 차용금의 사용 내역과 달리 진술하고 있고, 2회와 3회의 검찰 조사에서 차용금을 빌린 이유와 차용금을 사용한 내역에 대하여 진술이 일관되지 아니하며 객관적인 사실관계(실제 공소외 1로부터 2005. 9.경 1억 원 권 수표를 받아 같은 달 14. 공소외 3의 계좌에 그 수표를 입금하여 그 후 이틀간 현금화 하였다)와 다른 진술을 하고 있는 점, 피고인 1은 법정에서 2억 원 중 일부의 사용 내역과 관련하여 “선거가 얼마 남지 않은 시점이라 공소외 1로부터 받은 7,000만 원을 현금으로 가지고 있었다.”는 취지로 진술하나 구청장 수행비서에 불과한 피고인 1이 지방선거(2006. 5. 31.)가 무려 8개월 보름 가량 남아있던 2005. 9. 16.경에 선거를 대비하기 위해 7,000만 원이 넘는 거액을 현찰로 가지고 있었다는 것은 납득하기 어려운 점, 피고인 1이 검찰에서 ‘ 피고인 3에게 돈을 전달하였다’는 취지로 진술을 한 이후인 2009. 5. 19. 부평구청에서 근무하고 있는 공소외 6이 피고인 1을 면회하여 그 진술을 번복할 것을 회유하였던 사실이 있는 것으로 보이는 점, 피고인 1은 이 법정에서 기존의 진술을 번복하면서 검찰에서 공소사실에 부합하는 진술을 하였던 경위에 관해 “내가 검찰에서 그렇게 진술을 한 것은 함정을 파놓은 것이었는데 공소외 1이 걸려든 것이다.”는 취지로 진술하나 다른 한편으로 피고인 1은 이 법정에서 검찰 조사 당시 공소사실에 부합하는 진술을 하였던 경위에 관해 “구속되어 있는 동안 아내가 정신질환으로 인해 고통받는 것이 너무나 마음 아팠고 힘이 들었다. 아내를 살리는 것이 가장 중요하고 급해 검찰에서 그렇게 진술하였다.”는 취지로 진술하였는바, 사정이 그러하다면 아내의 건강이 좋지 아니하고 가족들의 불행으로 인해 정신적으로 힘든 상황에서 아래에서 보는 바와 같이 상세하고 구체적인 사정에 이르는 점까지 허위로 진술하는 “함정”을 파는 것은 납득하기 어려운 점, 피고인 1이 피고인 3에게 없는 죄를 덮어씌울 만한 원한관계가 있었던 것으로 보이지 않는 점 등을 종합하면, 피고인 1이 공소외 1로부터 받은 금원을 단순한 차용금으로 보기는 어렵고, 그와 같은 내용을 핵심적인 사항으로 하는 피고인 1의 법정진술은 이를 선뜻 믿기 어려우므로 그 신빙성이 없다고 할 것이다.」고 판단하였고, 이 부분 공소사실에 부합하는 피고인 1의 검찰에서의 일부 진술은 “ 피고인 3에게 2억 원 및 5,000만 원이 든 가방을 전달한 사실에 대한 전체적 경위, 자금의 출처 및 현금화 방법, 현금을 포장한 방법 및 운반 수단, 현금을 제공한 장소, 자금을 공여한 횟수 등에 관한 진술의 일관성과 상세함, 피고인 1의 검찰 진술의 합리성 및 관련 정황에 비추어 본 위 진술 내용의 객관적 상당성, 진술의 동기, 피고인 1의 인간됨 및 진술태도 등을 모두 종합하여 보면, 피고인 1이 검찰에서 한 위 진술은 충분히 신빙할 수 있는 것”으로 판단하였으며, 공소외 1의 진술의 신빙성에 대해서는「 공소외 1이 피고인 1에게 거액을 전달한 장소에 관하여 수차 진술을 번복하기는 하였으나, 피고인 1에게 교부한 돈의 총액, 그 명목 등에 관하여는 비교적 일관되게 진술을 한 점, 계좌추적 결과, 현장확인 등 사실을 확인해 나가는 동안 그 내용을 차츰 정리하여 그 이후에는 자금의 출처, 현금화 과정, 피고인 1과 같이 피고인 3의 집 앞에 간 사실 등 그 정리한 내용에 관하여 이 법정에 이르기까지 비교적 일관되게 진술을 하고 있는 점, 공소외 1은 이 사건 주차빌딩사업을 주도적으로 추진하는 위치에 있어 피고인 1과의 금전거래 이외에도 그 무렵 동업자인 공소외 2, 4 및 지인인 공소외 18, 19 등과 거액의 돈 거래를 다수 하였던 사실에 비추어 피고인 1과 돈을 거래한 장소에 관해 진술을 번복한 경위에 관해 납득할 수 있는 사정이 전혀 없다고 보기는 어려운 점, 이 사건이 지금으로부터 약 4년 전에 발생한 일이고 공소외 1의 기억력이 그다지 좋은 것으로 보이지는 않는 점 등을 종합하면, 기억 상의 한계에서 비롯된 일부 부정확한 진술이 있었다는 것만으로 공소외 1의 진술의 신빙성을 부정하기는 어려운 것」으로 판단하였다. 원심은 이외에 구청장에게 직접 청탁을 하지 않은 것은 이해할 수 없다거나 뇌물의 입금처 등이 밝혀지지 아니하였다는 피고인 3 및 그 변호인의 주장은 이 부분 공소사실을 유죄로 인정하는데 장애가 되지 아니한다고 판단하였다.

(3) Judgment of the court below

(A) Whether Defendant 1’s prosecutorial office credibility of certain statements

In a case where the issue is whether to receive or receive money is the issue, and there is no objective evidence, such as financial data to support the fact that the defendant denies the receipt or receipt of money, the statement by the person who provided the money must have the admissibility of evidence, and there is credibility to exclude a reasonable doubt. In determining the credibility of the statement, it should also be examined whether the content of the statement itself is reasonable, objective reasonableness, consistency before and after, as well as its human beings, and there is an interest in the statement. In particular, in a case where there is a suspicion of a crime, and there is a possibility that the investigation is being initiated or an investigation is being conducted, even if the admissibility of the statement does not reach the extent that the evidence of the statement is denied, whether there is a possibility that the statement might affect the statement due to a threat or interview by using it, etc. (see, e.g., Supreme Court Decisions 200Do5701, Jun. 11, 200; 200Do3781, Aug. 17, 2005).

Defendant 3 denies the fact that he received money in this case. Since he stated that he reversed the existing statement by the prosecutor's office after April 1, 2009 and delivered KRW 200 million to Defendant 3, the issue is whether the statement is credibility enough to exclude a reasonable doubt. As examined in the above 2-C. (2) (a), part of the statement made by Defendant 1 at the prosecutor's office (the part reversed after April 1, 2009) cannot be accepted at all. Furthermore, the contents of the statement are inconsistent and cannot be seen as having a rationality and objective reasonableness. Thus, the credibility of the statement cannot be recognized (On the other hand, the facts acknowledged by objective evidence of the court below among the circumstances acknowledged the credibility of the above statement by Defendant 1 cannot affect the judgment of evidence of the court below).

Furthermore, inasmuch as it is difficult to recognize the credibility of Defendant 1’s statement reversed by the prosecution after April 1, 2009, Defendant 1 made a statement to the effect that Defendant 1 received from Nonindicted 16 to 50 million won of △△ Construction and delivered it to Defendant 3 after the prosecutor’s office, even if Defendant 1 made a statement to the effect that he received from Nonindicted 16 to 50 million won from △△ Construction and then delivered it to Defendant 3, Defendant 1 cannot be accepted as having credibility unless other objective evidence supporting the credibility of the above statement.

(B) As to the acquisition of third-party brain related to the public parking lot of ○○ Dong

① Some of the statements made by Defendant 1 at the prosecutor’s office (the part reversed after April 1, 2009) as shown in this part of the facts charged cannot be recognized as credibility of the statements, as seen above.

② Next, Nonindicted 1 made a statement at the court of original instance that he was accompanying to ○○ Dong-dong apartment, which is the residence of the head of Bupyeong-gu, the day when he delivered KRW 85 million to Defendant 1 at the court of original instance. However, at the time when he was aware that the apartment was unaware of the head of the Gu’s residence and that Defendant 1 was delivering the said money to Defendant 3 at the time, he did not think that the said money was between Defendant 3 (Therefore, there was no discussion with Defendant 3 in relation to the parking building project because he was unaware of the head of the Gu’s intention that the money was returned to Defendant 1). However, at the court of original instance, Nonindicted 1 did not know that he was able to receive the money at the time of his residence, but he could not receive the said money from Defendant 3’s house, but he could not receive the witness’s first statement at the time when she made a statement to Defendant 1 because he did not appear to have been able to have a correct mental condition.

③ In full view of the above evidence (excluding the part rejected above) and other evidence duly adopted by the court below, the fact that Defendant 1 received KRW 85 million from Nonindicted 1 to Defendant 1 during August 2005, and KRW 115 million during September 2005, respectively, among the police officers of the same year. However, with respect to whether Defendant 1 delivered the above money to Defendant 3 as seen above, it is insufficient to acknowledge credibility only the remaining evidence, excluding the partial statements of Defendant 1 and Nonindicted 1, for which it is difficult to recognize credibility as seen above, and there is no other evidence to acknowledge it (or even if the above money was delivered to Defendant 3, if Defendant 1’s partial statement was excluded from the above, there is no evidence to prove that Defendant 3 received the above money with the intent of acquiring a third-party brain in relation to the parking building project).

(C) As to the acquisition of third-party brains in relation to the construction of Bupyeong-gu Office Station 7 subway lines

① As seen earlier, Defendant 1’s partial statement (as part of the statement made after April 1, 2009, the prosecutor’s protocol made on April 28, 2009, the prosecutor’s protocol made on April 29, 2009, the prosecutor’s protocol made on April 29, 2009, the prosecutor’s protocol made on May 7, 2009, and the prosecutor’s protocol made on the suspect’s interrogation made on May 1, 2009 (the part made by Defendant 3 and the replacement with Defendant 1). In light of the above statements made by Defendant 1 and Nonindicted 17, etc., which were sent by Nonindicted 17 around August 23, 2005, it is difficult to readily believe that Defendant 1 “delivery to Defendant 3” was delivered by the head of Bupyeong-gu Office, the Defendant 1 did not prosecute this part of the charges (the charge related to this part).

② At the prosecution, around July 8, 2005, Nonindicted 16 (the head of △△ Construction), Nonindicted 16 (the head of △△△) knew that it was an important issue that △△ Construction set up and used building materials, camping sites, etc. in neighboring neighboring neighboring neighboring green parks in Bupyeong-gu Office, but was opposed to the head of Bupyeong-gu. The fact that Defendant 1 paid money to Defendant 3, and that Defendant 1 did not know about the fact that he returned the said money to Defendant 3.

③ At the prosecutor’s office, Nonindicted 17 (SK Construction Site Director) made a statement to the same effect as the above statement at the prosecutor’s office, on the other hand, that Nonindicted 17 made a request to the Bupyeong-gu Office for temporary use of green parks near the Bupyeong-gu Office as building materials, etc., but the head of Bupyeong-gu was aware that the head of the Gu opposed to the civil petition. Nonindicted 16 was notified through Nonindicted 16 of △△△ Construction to prepare for 50 million won, and Nonindicted 16 was asked to her to her to her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her her. her her her.. her her her her....

④ If the above evidence (excluding the part rejected as above) and other evidence duly adopted and examined by the court below (as to whether Defendant 1 delivered the above money to Defendant 3, the remaining evidence, other than part of Defendant 1’s statement, are insufficient to acknowledge credibility as seen above, and copy of Non-Indicted 2’s statement of account transaction in the foreign exchange bank (if it is based on Non-Indicted 2’s statement of complaint, it is not written as Defendant 3). As indicated in this part of the facts charged, it can be acknowledged that Defendant 1 received KRW 50 million from Non-Indicted 17, who was ordered by Non-Indicted 16, and returned it later. However, as to whether Defendant 1 delivered the above money to Defendant 3, there is no evidence to acknowledge credibility, and there is no other evidence to acknowledge it (or no evidence to acknowledge otherwise if it is difficult to view that Defendant 3 had delivered money to Defendant 1’s counter-indicted 3’s counter-indicted 1’s counter-indicted 1’s counter-indicted 3’s counter-indicted 3’s counter-indicted 3’s counter-indicted.).

B. Judgment on the prosecutor's misconception of facts or misapprehension of legal principles

Based on the judgment of evidence as stated in its holding, the court below found Defendant 3 not guilty of violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (refer to the judgment of the court below 72 to 74) among the facts charged in this case (refer to the judgment below 72 to 74), and in comparison with the above judgment of the court below with the records, the judgment of the court below is just, and there is no error of misconception of facts or misunderstanding of legal principles as pointed out by the prosecutor, so

C. Sub-committee

Therefore, this part of the appeal by Defendant 3 is with merit, and the prosecutor's appeal against Defendant 3's acquittal is without merit.

5. Conclusion

Therefore, the part of the judgment of the court below against Defendant 1 among the judgment below is on the grounds of the above ex officio reversal, and the appeal by Defendant 3 is with merit. Thus, the part against Defendant 1 and the guilty part against Defendant 3 of the judgment of the court below pursuant to Article 364(2) and (6) of the Criminal Procedure Act without examining each of the allegation of unfair sentencing against Defendant 1 and Defendant 3 are reversed, and the appeal by Defendant 2, the prosecutor's appeal against Defendant 2 and the prosecutor's appeal against Defendant 2 and the acquittal part against Defendant 3 are all reversed, and they are dismissed, respectively, pursuant to Article 364(4) of the Criminal Procedure Act.

1. Defendant 1

The main facts charged against Defendant 1 and the main points of the ancillary facts charged are as stated in the above 2-A. The summary of the facts charged against Defendant 1 is as stated in the above 2-C. For the same reason as stated in the above 2-C., since each of the facts charged is a case where there is no proof of crime, the court acquitted Defendant 1 in accordance with the latter part of Article 325 of the Criminal Procedure Act and publicly notified the summary of the judgment against Defendant 1 in accordance with Article 58(2) of the Criminal Act.

2. Defendant 3

Of the facts charged against Defendant 3, the purport of the acquisition of third-party brain in relation to the public parking lot of ○○ Dong and the acquisition of third-party brain water in relation to the construction of Bupyeong-gu Station 7 subway Line 4-A. (1) is the same as the summary of the facts charged against Defendant 3, and the above facts charged for the same reason as stated in the above 4-A. (3) of the above 4-A. (3) constitutes a case where there is no proof of crime, and thus, the above facts charged are acquitted pursuant to the latter part of Article 325 of the Criminal Procedure Act, and the summary of the judgment against Defendant 3 pursuant to Article 58(2) of the Criminal Act is to be publicly announced.

It is so decided as per Disposition for the above reasons.

Judges Kim Chang-suk (Presiding Judge)

(1) ① Defendant 1’s statement statement of the fifth protocol of interrogation of the prosecution (hereinafter “private placement”) on April 1, 2009, Defendant 1’s fifth protocol of interrogation of the prosecution (hereinafter “private placement is required and Nonindicted 1 also thought that it would be able to receive an assistance at the time of carrying out the parking building project later if money is disclosed to the private placement) and ② Defendant 1’s statement statement of the prosecutor’s protocol on April 14, 2009 (No. 1’s head of the Gu private placement will be economically difficult if the private placement of the head of the Gu is helps Nonindicted 1 in money, and the private placement will not be able to help ○○ Dong-dong parking lot, and if the parking lot business could not proceed properly, it will be returned later, and if it is necessary, it would be possible to return it later to Defendant 1’s prosecutor’s 170 million won.