[1] The method of determining whether the defendant's prosecutor's statements are voluntary or not

[2] Whether the crime of acceptance of bribe under Article 129(1) of the Criminal Act is established in a case where a public official allows a person to deliver a bribe to another person without receiving a bribe directly (affirmative with qualification)

[3] The case holding that the crime of acceptance of bribe is established in a case where a company in which a public official is a de facto manager transfers money in the name of solicitation to a deposit account in the company name

[4] Whether a person who commits a crime under Article 131 (1) of the Criminal Code constitutes "a person who commits a crime under Articles 129 and 130 of the Criminal Code" under Article 2 (1) of the Act on the Aggravated Punishment, etc. of Specific Crimes (affirmative)

[5] The legislative intent of Article 254(4) of the Criminal Procedure Act and the specific extent of the facts charged

[1] In a case where the existence of the defendant's statement at the prosecutor's office is disputed, the court should determine whether the above statement was made at will due to free trial evidence in consideration of all the circumstances, such as the defendant's educational background, career, occupation, social status, intelligence degree, contents of the statement, and the form of the protocol of interrogation of suspect.

[2] In a case where a public official allows a person to deliver a bribe to another person without receiving a bribe directly, if the other person received a bribe as a public official's deceased person or proxy, or in other circumstances where a public official bears the other person's living expenses or bears the obligation to the other person, etc., and in a case where there is a relationship that can be evaluated as being directly received by a public official under generally accepted social norms, such as where the other person receives a bribe, such other person is exempted from the expenditure of the other person, not the crime of offering a third person under Article 130 of the Criminal Act, but the crime of acceptance of bribe under Article 129 (1) of the Criminal Act is established.

[3] The case holding that the crime of acceptance of bribe is established in a case where a public official, who is a de facto manager, receives money in the name of solicitation from the company to the deposit account in the name of the company

[4] Article 131(1) of the Criminal Act provides that a public official or an arbitrator shall be subject to aggravated punishment when he commits an unlawful act after committing a crime under Articles 129 and 130 of the Criminal Act. Thus, a person who commits a crime under Article 131(1) of the Criminal Act is a person who commits a crime under Articles 129 and 130 of the Criminal Act under Article 2(1) of the Act on the Aggravated Punishment, etc. of Specific Crimes.

[5] The purport of Article 254(4) of the Criminal Procedure Act that specifies the facts charged by specifying the time, place, and method of a crime is to limit the scope of trial against the court and facilitate the exercise of the defendant's right to defense by specifying the scope of defense against the defendant. Thus, considering the nature of the indicted crime, it is sufficient to specify the facts causing the public prosecution by stating the time, time, place, method, purpose, etc. to the extent that it can distinguish the facts that are different from other facts in light of the nature of the indicted crime, it is sufficient to specify the facts charged, even if some of it is unclear, the facts charged can be specified along with other matters stated, and therefore, if

[1] Article 308 of the Criminal Procedure Act / [2] Articles 129(1) and 130 of the Criminal Act / [3] Article 129(1) of the Criminal Act / [4] Article 131(1) of the Criminal Act, Article 2(1) of the Act on the Aggravated Punishment, etc. of Specific Crimes / [5] Articles 254(4) and 327 subparag.

[1] Supreme Court Decision 200Do1216 decided Feb. 9, 2001 (Gong2001Sang, 678), Supreme Court Decision 2003Do705 decided May 30, 2003 (Gong2003Ha, 1494) / [2] Supreme Court Decision 98Do1234 decided Sep. 22, 1998 (Gong198Ha, 2628), Supreme Court Decision 2001Do7056 decided Apr. 9, 200 (Gong202, 1176) / [4] Supreme Court Decision 69Do1288 decided Dec. 9, 1969 (Gong174, 1799) 2000Do9499 decided Dec. 39, 2009

Defendant 1 and one other

Defendants

Law Firm Sejong, Attorneys Seo Sung-sung et al.

Busan High Court Decision 2003No575 delivered on December 3, 2003

All appeals are dismissed. One hundred days out of the number of detention days after Defendant 1’s appeal shall be included in the original sentence against the above accused.

Defendant 2 and his defense counsel’s grounds of appeal are examined together.

1. As to the admissibility of the suspect interrogation protocol prepared by the prosecutor against Defendant 2

In a case where the existence of the defendant's statement at the prosecutor's office is disputed, the court should determine whether the above statement was made arbitrarily by free conviction in consideration of all the circumstances, including the defendant's educational background, career, occupation, social status, intelligence degree, content of statement, and the protocol of interrogation of suspect, according to specific cases (see Supreme Court Decisions 2000Do1216, Feb. 9, 200; 2003Do705, May 30, 2003, etc.).

According to the records, Defendant 2 acknowledged the authenticity and voluntariness of the interrogation protocol of the above defendant on the date of the first trial of the court of first instance. Meanwhile, when the above defendant is examined in the prosecutor's office on the first and second occasions, he did not make any statement related to the crime of this case. As a result of the financial transaction inquiry of the non-indicted 1 corporation, it was revealed that the above defendant deposited the money KRW 179,904,809 (hereinafter referred to as "the money of this case") from the above defendant to the non-indicted 1 corporation, he led all of the crimes of this case in the prosecutor's office, 3, 4, and 5 suspect interrogation. In light of all the circumstances indicated in the records, such as the progress of the confession of the crime of this case, contents of the protocol, the age, academic background and intelligence of the above defendant, etc., the prosecutor's assertion that the above defendant's defense counsel and the defendant's suspect interrogation protocol of this case were not prepared differently from the facts.

2. As to the illegal action after the acceptance of the bribe, and the bribery and the bribery

A. The court below acknowledged the facts as stated in its reasoning after comprehensively taking account of the adopted evidence. The non-indicted 1 corporation was merely a representative director's name on the corporate register and actually operated by the defendant 1. The defendant 2 was expected to cooperate with the defendant 1, the real management of the non-indicted 3 corporation with respect to the early approval of the use of the leased apartment of this case constructed by the non-indicted 3 corporation, and transferred the money to the non-indicted 1 who requested the assistance for the settlement of bills for the non-indicted 1 corporation's non-indicted 1's non-indicted 1's non-indicted 1's non-indicted 1's non-indicted 1's non-indicted 1's non-indicted 1's non-indicted 3 corporation's non-indicted 3 corporation's non-indicted 3 corporation's non-indicted 3 corporation's non-indicted 1's non-indicted 3 corporation's non-indicted 3 corporation's non-indicted 3 corporation's non-indicted 1's non-indicted 1's non-indicted 1's non-indicted 1's defendant's non-indicted.

Therefore, the defendant 2 and his defense counsel's allegation in this part of the grounds of appeal is without merit.

B. In addition, in light of the records, the court below's determination of the whole of the money of this case as a bribe is just, and Defendant 1's defense in the grounds of appeal purporting that only the amount equivalent to the financial interest of this case constitutes a bribe cannot be accepted.

C. In a case where a public official allows a person to give a bribe to another person without having received a bribe directly, in a case where the other person received a bribe as a public official's deceased person or representative, or where other person bears the expenses of living, etc. of the other person or bears the expenses of the other person, for example, in a case where a public official receives a bribe and has a relation that can be evaluated as being directly received by a public official in light of social norms, such as where the other person was exempted from the expenses of the other person, etc., the public official shall not be deemed to have received a bribe under Article 130 of the Criminal Act, but the crime of acceptance of bribe under Article 129 (1) of the Criminal Act shall be established (see, e.g., Supreme Court Decisions 98Do1234, Sept. 22, 1998; 201Do7056, Apr. 9, 2002).

In light of the records, the non-indicted 1 corporation only used the name of the representative director as the non-indicted 2, who was the birth of the non-indicted 1 corporation on the corporate register, and the defendant 1 disposes of the real estate owned by the non-indicted 1 corporation and provides operation funds of the non-indicted 1 corporation. The defendant 2 transferred the money in this case to the deposit account in the name of the non-indicted 1 corporation. The defendant 1 had the non-indicted 1 corporation directly transfer the money in this case to the non-indicted 1 corporation's deposit account for the purpose of preparing the payment due to the shortage of the payment on the date of the bill settlement of the non-indicted 1 corporation actually operated by the non-indicted 1 corporation, and the non-indicted 1 corporation could be exempted from the payment for the bill settlement of the non-indicted 1 corporation, and the defendant 1, who was the actual manager of the non-indicted 1 corporation, was exempted from the obligation to pay the payment for the bill in this case, as alleged in the ground of appeal.

Defendant 2 and his defense counsel’s allegation in this part of the grounds of appeal is without merit.

D. Article 131(1) of the Criminal Act provides that a public official or an arbitrator shall be subject to aggravated punishment when he commits an unlawful act after committing a crime under Articles 129 and 130 of the Criminal Act. Thus, a person who commits a crime under Article 131(1) of the Criminal Act shall be deemed to be a person who commits a crime under Articles 129 and 130 of the Criminal Act under Article 2(1) of the Act on the Aggravated Punishment, etc. of Specific Crimes (see Supreme Court Decisions 69Do1288 delivered on December 9, 1969, 94Do303 delivered on December 9, 199, etc.). In the same purport, the court below's decision on the rate of violation of Article 2(1) of the Act on the Aggravated Punishment, etc. of Specific Crimes against Defendant 1 is justifiable, and there is no violation of law by misunderstanding the legal principle under Article 2(1) of the Act on the Aggravated Punishment, etc. of Specific Crimes, as otherwise

Defendant 1’s defense counsel’s ground of appeal on this part is without merit.

E. The purport of Article 254(4) of the Criminal Procedure Act that stipulates the date, time, place, and method of a crime to specify the facts charged is to limit the scope of the trial against the court, to specify the scope of the defense against the defendant, and to facilitate the exercise of his/her defense right by specifying the scope of the defense against the defendant. Thus, considering the nature of the indicted crime, it is sufficient to specify the facts causing the public prosecution by disclosing the date, time, place, method, purpose, etc. to the extent that it is possible to distinguish the facts constituting the cause of the public prosecution from other facts. Even if some of it is somewhat unclear, the facts charged can be specified along with other matters indicated. Thus, if there is no impediment to the defendant's defense right, the effect of the public prosecution does not affect (see, e.g., Supreme Court Decisions 9Do1900, Jun. 25, 199; 200Do4415, Feb

According to the records, the date and place of the crime, the receiver and the receiver of the bribe, and the amount of the bribe are specified as the facts charged in this case, and the actual manager of the above non-indicted 1 corporation directly transfers the money from the bribe offerer to the non-indicted 1 corporation. Thus, the facts charged regarding the subject, method, etc. of the bribery cannot be deemed as not being specified on the ground that the actual manager of the above non-indicted 1 corporation indicated Defendant 1, and it cannot be deemed as impeding the exercise of

Therefore, Defendant 1’s defense counsel’s ground of appeal that the indictment is unlawful because the facts charged are not specified is without merit.

3. As to the violation of Acts and subordinate statutes in litigation procedures

Defendant 2’s crime of this case is the crime of offering of bribe under Article 133(1) of the Criminal Act, and the statutory penalty is imprisonment for not more than five years or a fine not exceeding 20 million won under Article 282 of the Criminal Procedure Act, and it does not constitute a requisite attorney-at-law under Article 282 of the Criminal Procedure Act. Defendant 1 and Defendant 2 were prosecuted and tried for a violation of the Act on the Aggravated Punishment, etc. of Specific Crimes, which constitutes a requisite attorney-at-law. Thus, Defendant 2’s case against Defendant 2 does not constitute a necessary attorney-at-law. Thus, on the premise that the above Defendant’s case constitutes a necessary attorney-at-law case, Defendant 2’s lawsuit conducted without an appearance of the above Defendant’s counsel at the first trial court on the first trial date of the first trial

4. Conclusion

Therefore, all appeals are dismissed, and part of the detention days after the appeal shall be included in the original sentence against the above defendant. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Shin Shin-chul (Presiding Justice)