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(영문) 서울고등법원 2013.11.15 2013노1333
특정경제범죄가중처벌등에관한법률위반(사기)등
Text

The judgment of the court below is reversed.

Defendant

A Imprisonment with prison labor for a period of two and a half years, and for a period of three years, each of the defendants C shall be punished.

Reasons

1. Summary of grounds for appeal;

A. Defendant A1) misunderstanding of facts or misunderstanding of legal principles did not participate in the preparation of the price investigation report in 2006, and in 2011, the price investigation report prepared by Defendant A was not adopted as the basis for the determination of the estimated price of the Defense Acquisition Program Administration. As such, Defendant A cannot be deemed to have committed deception with respect to each of the crimes listed in the [Attachment 1] No. 1 and 6 of the crimes listed in the judgment of the court below, or Defendant A did not have a causal link with Defendant A’s act, and Defendant A committed each of the crimes listed in this part. However, the judgment of the court below which found Defendant A guilty of all of the facts charged is erroneous in the misapprehension of facts. 2) In light of the fact that Defendant A’s imprisonment (three years) against Defendant A is too unreasonable.

B. In light of the fact that Defendant C was the first offender and it is difficult to readily conclude that all the profits acquired by Defendant C were a bribe through an illegal transaction, the lower court’s punishment against Defendant C (a prison term of five years and fines of 255,818,90 won, additional collection of KRW 255,818,90) is too unreasonable.

C. In light of the fact that the bribe received by the prosecutor (defendant C) by the defendant C reached KRW 255,818,90, and the suspicion was denied, and there is no doubt as to it, the lower court’s sentence against the defendant C is too unreasonable.

2. Before determining ex officio the grounds for appeal by the Defendants and the Prosecutor, prior to the determination, the Prosecutor changed the name of the offense against Defendant C from “Violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (Bribery)” to “the acceptance of bribe”; the applicable provisions of this Act were changed to “Article 2(1)1 and (2) of the Act on the Aggravated Punishment, etc. of Specific Crimes; and Article 129(1) of the Criminal Act”; and “Article 129(1) of the Criminal Act” in the facts charged against Defendant C from October 20 to September 12, 2012.

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