[1] The scope of adjudication in an appellate court

[2] Whether the crime of simple bribery under Article 129(1) of the Criminal Act is established in a case where a public official, without receiving a bribe directly, has a receiver deliver a bribe to a third party and the third party has received a bribe (affirmative with qualification)

[1] The appellate court shall judge without any need to examine whether the grounds for appeal are submitted, or whether the grounds for appeal are included in the statement of reasons for appeal, if the appeal are lawful. However, with respect to non-grounds for ex officio investigation, it may be subject to the trial only when they are included in the statement of reasons for appeal submitted within the prescribed period, unless they are stated in the petition of appeal or otherwise. However, even if they are not included in the statement of reasons for appeal only when they affect the conclusion of the judgment, it may be tried ex officio. Meanwhile, even if the defendant or defense counsel states matters not included in the statement of reasons for appeal in the appellate court, it cannot

[2] In comparison with the crime of simple bribery under Article 129(1) of the Criminal Act, where a public official directly receives a bribe and allows a third party to receive a bribe without receiving it, and where the public official causes a third party to receive it, the same punishment as the crime of simple bribery shall be imposed only on the case where the third party received it, and where the public official directly receives it and instead causes a third party to receive it, and where the third party receives it, it shall not be punished unless the third party receives it. However, even if a public official directly receives it, and where the third party receives it, it shall not be punished if the third party receives it, and even if the third party receives it, if the third party receives it, such another person receives it, as a public official's person or proxy, or where the third party bears expenses for life or bears expenses for the third party, or bears expenses for the third party, a public official directly receives it, as provided by social norms, under Article 129(1) of the Criminal Act.

[1] Articles 361-4 and 364 of the Criminal Procedure Act / [2] Articles 129(1) and 130 of the Criminal Act

[1] Supreme Court Decision 74Do502 delivered on March 26, 1974, Supreme Court Decision 76Do437 delivered on March 23, 1976 (Gong1976, 908), Supreme Court Decision 76Do437 delivered on March 23, 1976 (Gong1976, 908), Supreme Court Decision 90Do1021 Delivered on September 11, 1990 (Gong190, 2112), Supreme Court Decision 92Do1544 delivered on March 9, 193 (Gong193Sang, 1183)

Defendant 1 and one other

Defendants

Attorney Full-time et al. and two others

Seoul High Court Decision 97No2289 delivered on April 21, 1998

The judgment below is reversed and the case is remanded to Seoul High Court.

1. Before determining the grounds of appeal, we examine ex officio.

(8) The summary of the facts charged against Defendant 1 is 0,00,000 won in cash at the defendant's house located in Yeongdeungpo-gu Seoul Metropolitan City on June 196, 196, 200, 00,000 won in cash at 0,000, 10,000 won in cash at 0,00,000,000 won in the first 6,00,00 won in the first 6,00,00 won in the first 6,00,000,000 won in cash at 0,000,000 won in the first 6,00,000 won in the original 9,00,000 won in the first 6,00,000 won in the original 9,00,000 won in the first 6,00,000 won in the original 9,00 won in the original 6,00,000 won in the original 9,00.

(1) On June 6, 1996, Defendant 1: (1) 1,00,00 won in cash at the defendant's house located in Yeongdeungpo-gu Seoul Metropolitan City Do; (2) 5,00,000 won in cash at the 1st floor restaurant located in the same Gu Do, and (3) 5,00,00 won in cash at the 1st floor restaurant located in the same Gu Do Do Do 10; and (4) 60,00,00 in cash at the 1st floor restaurant of Yeongdeungpo-gu 11; and (5) 60,000,000 won in cash at the 2nd Do 10,000,000 won in cash at the 6nd Do 10,000,000 won in cash at the 1st Do 2nd 6nd 3rd Do 3rd Do 3rd Do 3rd Do 12.

Although the first instance court recognized the acceptance of a bribe and the amount of a bribe, compared with the date of the acceptance of a bribe and the facts charged, it is difficult to view that the facts acknowledged by the first instance court are identical to the facts charged. In this respect, the first instance court's judgment violated the principle of no accusation. In addition, even though the first instance court recognized the acceptance of a bribe and the amount of a bribe offered by the Defendants, the first instance court recognized the sum of KRW 61,00,000 as the sum of the amounts of the acceptance of a bribe and the grant of a bribe as KRW 66,00,000,000, and the first instance court's collection of KRW 66,00,000 against Defendant 1 is inconsistent with the reasons. Since the lower court that upheld the first instance court's judgment is also illegal, the lower court's judgment that upheld the first instance judgment is also unlawful, it

2. Judgment on the grounds of appeal

A. As to Defendant 1’s violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (Bribery)

(1) Whether there is a deviation from the determination of the grounds for appeal

Article 361-4 (1) of the Criminal Procedure Act provides that an appellant or defense counsel shall dismiss an appeal by decision when he/she fails to submit a statement of reasons for appeal within the prescribed period under Article 361-3 (1) of the same Act, but it shall be excluded in cases where the grounds for ex officio investigation exist or the grounds for appeal are stated in the petition of appeal. Article 364 (1) and (2) of the same Act provides that the appellate court shall judge the grounds for appeal and may decide ex officio on the grounds not included in the statement of reasons for appeal. On the contrary to the above provisions, the appellate court shall decide ex officio whether the grounds for appeal are legitimate if the appeal is filed in relation to the grounds for ex officio investigation, or whether the grounds for appeal are included in the statement of reasons for appeal. However, with respect to those other than the grounds for ex officio investigation, it is evident that ex officio adjudication may be made even if they are not included in the statement of reasons for appeal within the prescribed period, and even if they are not included in the grounds for appeal (see, e.g., Supreme Court Decision 7439Do494.

In the instant case, Defendant 1’s attorney-at-law’s attorney-law’s statement of grounds for appeal, based on the overall facts charged, asserts unfair sentencing. Of the amount of the accepted money stated in the written statement of grounds for appeal, KRW 24,00,00,00 among the amount of the accepted money stated in the written statement of grounds for appeal, Defendant 1’s attorney-at-law’s attorney-law’s written statement of grounds for appeal, was not the Defendant but the Nonindicted Party received, and the Defendant stated that the money received was used for the assistance of depression, resident background investigation, and self-help organization, but on the other hand, it cannot be said that there was a statement that Defendant 1 or the Nonindicted Party received the money from Defendant 2 was not related to Defendant 1’s duties. Accordingly, the above assertion is nothing more than the assertion of misapprehension of legal principles or misconception of facts, and it is nothing more than the assertion of grounds for considering sentencing in sentencing. Accordingly, even if the appellate court’s statement submitted by Defendant 1’s attorney-at-law after the cross-examination of counsel, Defendant 1’s witness’s testimony and the appellate court’s statement.

(2) Admissibility of evidence of each protocol of examination prepared by the prosecutor against Defendant 1

According to the records, the first protocol of interrogation of Defendant 1 prepared by the prosecutor was written as of July 14, 1997, and the second protocol of interrogation of Defendant 1 was written as of the following day. The second protocol of interrogation of the suspect was written as of July 14, 1997, and it is highly likely that Defendant 1 continued to undergo an investigation on July 14, 1997, when Defendant 1's statement was entered as of July 14, 1997. However, Defendant 1 confessions in the court of first instance as to the facts charged, and it is clear that the authenticity as to each protocol of interrogation of the suspect was established, and even when considering the circumstances of confession shown in each protocol of interrogation of the suspect, Defendant 1 did not deny money received from Defendant 2 at the initial stage of investigation, and Defendant 2 did not appear to have been aware of the specific circumstances at the time when Defendant 1 made a confession and pressure as to the admissibility of evidence, and Defendant 1's statement was not found to be unlawful.

(3) Whether the charge of bribery against the money received by the Nonindicted Party is established

However, according to the records, based on the facts charged, Defendant 2 directly provided the Nonindicted Party with the money in the same place as Defendant 1, and Defendant 2 provided the said money to the Nonindicted Party in accordance with the direction of Defendant 1, and Defendant 2 provided the said money to the Nonindicted Party on the non-indicted 1’s non-indicted 3, and Defendant 1 received the said money from Defendant 2, and Defendant 1 was deemed to have immediately attended the said money to the Nonindicted Party.

Article 129(1) of the Criminal Act provides that a public official shall be punished by imprisonment with prison labor for not more than five years or suspension of qualifications for not more than ten years where the public official receives a bribe in connection with his/her duties, and Article 130 of the Criminal Act separately provides that a public official shall be punished by imprisonment with prison labor for not more than five years or suspension of qualifications for not more than ten years where the public official has received a bribe to a third party in response to an unlawful solicitation in connection with his/her duties. In comparison with the crime of simple bribery under Article 129(1) of the Criminal Act, where a public official directly receives a bribe and has a third party receive such bribe, the same crime of simple bribery shall be punished only where the public official received such bribe, and where the public official has another person receive such bribe to a third party without receiving it directly, and where the public official has another person receive it, or where such other person has another person receive it as his/her agent, he/she shall not be punished by social norms, such as where the other person received it directly or has another person receive such bribe.

According to the records and records of this case, Defendant 1 and Nonindicted Party 1 can be deemed to have paid to the Nonindicted Party by receiving and consuming the money corresponding to Defendant 2. However, Defendant 2 and Defendant 2 cannot be deemed to have paid the money directly to the Nonindicted Party. Therefore, in order to apply Article 129(1) of the Criminal Act to the facts charged (2) and 6, the Nonindicted Party is required to have a relationship between Defendant 1’s private interest, or representative, or to have a relation between Defendant 1’s receipt of money by social norms and the receipt of money by the Nonindicted Party 1. According to the records, the Nonindicted Party is between the Yeongdeungpo-gu Women’s Federation and the Yeongdeungpo-gu Reading Library, etc., and Defendant 1 and the Nonindicted Party 2 around Yeongdeungpo-gu Office have a written objection that Defendant 1 and the Nonindicted Party 1 did not appear to have been subject to the same legal principles as stated in the facts charged. However, even if Defendant 1 and the Nonindicted Party 1 received money from the Nonindicted Party 2, the remainder of the facts charged did not appear to have been examined.

(4) Business relationship with Defendant 1’s money received

According to the records, Defendant 2 ordered Defendant 2 to be awarded a contract for the Anyangcheon Maintenance Project ordered by the Yeongdeungpo-gu Office for Co-Defendant 2. Defendant 2 attempted to assist Defendant 1 to be awarded a contract for the construction work of Ansancheon Maintenance Project, and Defendant 2 received a bribe of KRW 18,00,00 from Co-Defendant 1 of the original judgment in an unlawful manner so that he can be awarded a successful bid for the construction work, and Defendant 1 paid money to Defendant 1 in the above facts charged as follows: (a) in the case of the above facts charged, Defendant 1 paid money to Defendant 1; and (b) in the case of the above facts charged, Defendant 1 asked Defendant 1 to send money to another department and send himself to Defendant 2, who is the head of the Gu office’s employee. Considering that Defendant 1 has the right of supervision and personnel rights, etc., all of the entries in the facts charged with Defendant 2, Defendant 1, and Defendant 1 received money from each of the non-indicted, and there is no reason to dispute.

B. As to Defendant 2

Examining the evidence adopted by the judgment of the court of first instance in comparison with the records, it is just in the judgment of the court below that Defendant 2 received money from Co-Defendant 2 as a bribe in relation to his duties, and that each money recorded in the above facts charged (1) through (9) was given to Defendant 1 in relation to his duties, and there is no error in the misapprehension of legal principles as to bribe and offering of bribe or offering of bribe, or in violation of the rules of evidence, as discussed in the judgment below. There is no reason to discuss this issue.

However, as seen earlier, Defendant 2 had already provided money to Defendant 1 as stated in the facts charged ② and 6 is erroneous in the misunderstanding of legal principles as to Articles 133, 129(1) and 130 of the Criminal Act, which affected the conclusion of the judgment.

3. Therefore, with respect to Defendant 1 on the premise that Defendant 1 and 2 provided and received the said money as a bribe, the blanket crime under Article 2(1)2 of the Act on the Aggravated Punishment, etc. of Specific Crimes and Article 129(1) of the Criminal Act shall be deemed to be established, and with respect to Defendant 2, the blanket crime under Articles 133(1) and 129(1) of the Criminal Act shall be established, and the judgment of the court of first instance that maintained the judgment of the first instance that was punished as concurrent crimes with the crime of violation of Article 2(1)2 of the Act on the Aggravated Punishment, etc. of Specific Crimes and the simple bribery under Article 129(1) of the Criminal Act as stated in the judgment of the court of first instance cannot be exempted from the reversal. Accordingly, the judgment of the court below shall be reversed and the case shall be remanded to

Justices Park Jong-chul (Presiding Justice)