Do 2015 Do 13025 A. Violation of the Act on the Punishment, etc. of Specific Crimes (Bribery)

(b) Acquisition of a third party bribe;

(c) Violation of the Act on Punishment, etc. for Specific Crimes (recovering or receiving good offices);

D. Violation of the Electronic Financial Transactions Act

A

Prosecutor and Defendant

A legal entity BU

Attorney in charge DR, BV, B, DV

Attorney DZ.

Supreme Court Decision 2013Do7609 Decided September 26, 2013

Seoul High Court Decision 2015 447 decided August 12, 2015

December 10, 2015

all appeals shall be dismissed.

The grounds of appeal shall be determined.

1. As to the ground of appeal by the defendant

A. Regarding the facts of the violation of the Act on the Punishment, etc. of Specific Crimes (Bribery), in order to recognize the facts of the bribery of the Defendant, which was identified as the person who received the bribe in the crime of bribery, and in the absence of any objective data to support the facts of the bribery, there should be not only the ability of the provider of the bribe, but also the credibility to exclude reasonable doubt. In determining the credibility of the statement, it should also be examined not only whether the content of the statement itself is rational, objective reasonableness, and consistency before and after, but also whether there is a relation of interest derived from the statement (see Supreme Court Decision 2007Do3798, Jul. 27, 2007, etc.).

In addition, the crime of accepting bribery is established by accepting, demanding, or promising a bribe with respect to the good offices of matters falling under the duties of another public official by using his status as a public official, and the "public official" means using his status as a public official in a relationship that may have legal or factual influence on the handling of affairs that another public official performs, and there is no need to have a special relation, such as relationship, cooperation relationship, and supervision (see Supreme Court Decision 2006Do735, Apr. 27, 2006, etc.). In addition, when a public official receives money, valuables, or other benefits from a person who becomes the object of his duties, it can be clearly recognized as a special relation in light of social rules or by private-friendly relations.

Unless there is any circumstance, it cannot be deemed that there is no relation with the duties of a public official, and in a case where money and valuables were received in relation to the duties of a public official, even if it was used in the form of a private case, such money and valuables constitute a bribe (see Supreme Court Decision 2003Do1332, Feb. 13, 2004, etc.).

The court below's decision on July 24, 2009 and July 7, 2009, on the grounds as stated in its decision, granting permission from B to Defendant for gas charging stations, logistics storages, or land-to-public storages, golf practice fields, etc.

27. On August 27, 2000, KRW 30 million, KRW 40 million, KRW 20 million, KRW 20 million, KRW 30 million, KRW 30 million, KRW 9,000, KRW 3000, around December 22, 2009, KRW 300,000, KRW 300,000, and KRW 300,000,00 from May 18, 2010, the court maintained the judgment of the first instance, which found guilty of this part of the public prosecution.

Examining the reasoning of the original judgment in light of the aforementioned legal principles and evidence duly adopted, the lower court’s judgment did not err by violating the logical and empirical rules, such as the allegation of the grounds of appeal, and thereby exceeding the bounds of the principle of free evaluation of evidence or by misapprehending the legal principles on good offices, etc.

B. On the grounds as indicated in its holding, the lower court affirmed the first instance judgment convicting Defendant B of this part of the facts charged on the part of the lower court, on the following grounds: (a) on November 201, 2010, Defendant B issued KRW 200 million to a public official related to the permission for a meat processing plant as a bribe in relation to his/her duties; and (b) on August 1, 2010 to May 201, the first instance court affirmed the first instance judgment that found Defendant guilty of this part of the facts charged.

Examining the reasoning of the original judgment in light of the relevant legal principles and evidence duly adopted, the lower court’s judgment did not err by violating the logical and empirical rules, such as the allegation of the grounds of appeal, thereby deviating from the limits of free evaluation of evidence, or by misapprehending the legal principles on the acquisition of a third party bribe, acceptance of good offices, etc.

C. According to Article 383 subparag. 4 of the Criminal Procedure Act with respect to the wrongful assertion of sentencing, an appeal may be filed only for the case where death penalty, life imprisonment, or imprisonment with or without prison labor for more than 10 years, or imprisonment with or without prison labor, for the reason that the sentencing was unfair. Thus, the allegation that the Defendant’s judgment of the sentence was unfair in the instant case, which was sentenced to a more minor punishment, cannot be a legitimate ground for appeal.

2. On the grounds of appeal by a prosecutor, the lower court rendered a judgment of not guilty on the ground that there was no proof of a crime against the violation of the Act on the Punishment, etc. of Specific Crimes (recovered Property) around May, 201 and July 2, 201 among the facts charged in the instant case, on the grounds of the same reasons as the judgment in its holding.

Examining the reasoning of the judgment of the original court in light of the record, there is no illegality in the judgment of the original court in that it violated the logic and experience legal rules, such as the allegation of the grounds of appeal, thereby deviating from the limit of free evaluation of evidence or misapprehending the legal principles on the duty to judge the facts of other crimes ex officio without changing the indictment.

3. Conclusion

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

Justices Ko Young-han

Justices Lee In-bok et al.

Justices Lee Ki-taik