[1] In order to establish a crime of violation of Article 111 (1) of the Attorney-at-Law Act, whether a public official in charge must clearly specify the public official in charge and make a direct solicitation to him/her as the pretext of receiving money, etc. (negative), and in cases where the nature of solicitation, other than the nature of the price for providing labor or convenience, is indivisiblely combined with those of the price for providing labor or convenience, whether it has the nature as the pretext of solicitation for the case or affairs handled by the public official

[2] Where the act of receiving money and valuables, etc. from an attorney who has been commissioned a legal case regularly constitutes a violation of Article 111 (1) of the Attorney-at-Law Act

[1] Article 111 (1) of the Attorney-at-Law Act / [2] Articles 2, 3, and 111 (1) of the Attorney-at-Law Act

[1] [2] Supreme Court Decision 2002Do3600 Decided June 28, 2007 (Gong2007Ha, 1195) / [1] Supreme Court Decision 2007Do304 Decided April 10, 2008 / [2] Supreme Court Decision 2012Do2409 Decided January 31, 2013

Defendant 1 and one other

Defendants and Prosecutor

Law Firm Sohn, et al.

Seoul High Court Decision 2016No4172 decided June 16, 2017

All appeals are dismissed.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. Judgment on Defendant 1’s grounds of appeal

A. As to the violation of the Attorney-at-Law Act related to the master brand business

(1) The crime of violation of Article 111(1) of the Attorney-at-Law Act, which is established when a public official receives money, valuables, entertainment or other benefits under the pretext of solicitation or arrangement, is not necessarily established when the public official in charge is specifically specified and directly solicits or mediates to him/her, but can also be established when the public official receives money, valuables, etc. under the pretext of offering solicitation or intermediation through intermediary who can exercise influence, etc. (see Supreme Court Decision 2002Do3600, Jun. 28, 2007). It merely provides labor or convenience in connection with a case or business handled by a public official and receives money, etc. as a price for such solicitation or arrangement, the case is not included in the "act of receiving money, valuables, entertainment or other benefits under the pretext of solicitation or arrangement in connection with the case or business handled by a public official" under the above provision, but where the nature of money and valuables is indivisiblely combined with the pretext of solicitation in the case or business handled by a public official, it has the nature of accepting them in whole or insepar.

In addition, the selection of evidence and probative value of evidence conducted under the premise of fact-finding belong to the free judgment of the fact-finding court (Article 308 of the Criminal Procedure Act).

(2) The lower court determined that Defendant 1 received KRW 200 million from Nonindicted 1 upon receiving a request from Nonindicted 2 to Nonindicted 3, the president of the ○○○○○○○○○○○○○○○○○, which was the fact that, after taking full account of the following: (a) the evidence presented in the first instance judgment (except the part concerning the criminal facts of the first instance judgment as to the case 2016 Manhap588); (b) Defendant 1 received KRW 100 million, respectively, from Nonindicted 2 and Nonindicted 1; and (b) Defendant 1 received the said money; and (c) Defendant 1 received KRW 200 million, upon receiving a request from Nonindicted 1 to the effect that the said money was merely a congratulatory money for business opening or that the case of offering of a bribe or acceptance of a complaint against Nonindicted 2, Nonindicted 4, etc. was a consideration.

(3) Of the allegations in the grounds of appeal, the allegation that the above judgment of the court below is the basis for the fact-finding or that the determination was reached is merely an error in the judgment of the court of fact-finding as to the choice of evidence and probative value, which belong to the

In addition, even if examining the reasoning of the lower judgment in light of the aforementioned legal doctrine and the record, the lower court’s measure taken as evidence by recognizing the admissibility of the evidence as stated in the judgment, including each written statement against Nonindicted 1, but the lower court did not err by misapprehending the legal doctrine on admissibility of evidence, etc. or by exceeding the bounds of the principle of free evaluation of evidence

B. As to the remaining convictions

Although Defendant 1 filed an appeal against each part of the tax evasion which the lower court found guilty, Defendant 1 did not state the grounds for appeal in the petition of appeal, nor did the appellate brief find the grounds for appeal as to this part.

2. Judgment on the appeal by Defendant 2 Law Firm

Defendant 2 Law Firm did not submit a statement of grounds for appeal within the statutory period, and the petition of appeal does not contain any information in the grounds for appeal.

3. Judgment on the grounds of appeal by the prosecutor

A. As to Defendant 1’s habitual gambling-related violation of the Attorney-at-Law Act

(1) In light of the public nature of the attorney-at-law and the universality of the scope of duties, Article 111(1) of the Attorney-at-law Act cannot be deemed as a provision that is subject to punishment for lawful solicitation or commission performed by an attorney-at-law in accordance with the purport of delegation. Therefore, in the case of an attorney-at-law who has been regularly requested legal cases, it is difficult to regard the case as a normal activity as a legal professional of public nature, such as entertainment for resolving the case, offering bribe, offering private relations or friendly relations, etc., on the ground that it is difficult to view the case as a normal activity of a legal professional of public nature, such as transfer of the client’s solicitation to a public official, or receiving or promising to receive money or valuables, etc., on the ground that the pretext of receiving money or valuables, etc. is irrelevant to the status and scope of duties of attorney-at-law (see, e.g., Supreme Court Decisions 2002Do3600, Jun. 28, 2007; 2013Do3).

In addition, the finding of guilt in a criminal trial shall be based on evidence with probative value that leads a judge to the truth that the facts charged are true beyond a reasonable doubt, and even if there is no such proof, the conviction cannot be judged as guilty even if there is a suspicion of guilt against the defendant (see, e.g., Supreme Court Decisions 2001Do2823, Aug. 21, 2001; 2005Do8675, Mar. 9, 2006).

(2) The lower court determined to the effect that it is difficult to prove that the evidence submitted by the prosecutor alone, based on the circumstances indicated in its reasoning, such as the circumstance that Nonindicted Party 1 and Defendant 1 accepted the case of habitual gambling from Nonindicted Party 1 and Defendant 1, and the specific activities of Defendant 1, etc., was given and received KRW 300 million under the pretext of soliciting the prosecutor’s office so that Nonindicted Party 1 was allowed to receive an unconvicted investigation by denying private relationship or friendly relationship.

(3) While examining the reasoning of the lower judgment in light of the aforementioned legal doctrine and the record, the lower court did not err in its judgment by misapprehending the legal doctrine regarding a violation of Article 111(1) of the Attorney-at-Law Act, or by exceeding the bounds of the principle of free evaluation of evidence

B. As to each of the Defendants’ tax evasion parts

(1) On the grounds indicated in its reasoning, the lower court determined that part of the omitted sales, which was the premise of the facts charged, cannot be recognized, and determined that the portion exceeding the amount of evaded sales again calculated on the basis of the remaining omitted sales was not acquitted (in the case of Defendant 1, the lower court acquitted the Defendant of a violation of Article 8(1) of the Act on the Aggravated Punishment, etc. of Specific Crimes, premised on the premise that the amount of evaded tax is more than 50 million won, since the sum of the amount of evaded tax again calculated in

(2) The allegation in the grounds of appeal is merely an error of the judgment of the court of fact-finding regarding the selection and probative value of evidence, which actually belongs to the free judgment of the court of fact-finding. Furthermore, even if examining the reasoning of the judgment below in light of the records, the court below did not exhaust all necessary deliberations as alleged in the grounds of appeal, or did not err by exceeding

4. Conclusion

Therefore, all appeals by the Defendants and the Prosecutor are dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Shin (Presiding Justice)