[1] The meaning of "accounting personnel" under Article 2 of the Act on Liability of Accounting Personnel, Etc. / Whether the head of a central government agency is included in the scope of accounting personnel in a case where the head of a central government agency did not delegate accounting affairs to a public official under his/her jurisdiction, or where the head of a central government agency is legally required to deal with accounting affairs by himself/herself

[2] Whether the Director of the National Intelligence Service constitutes an "other person in charge of national accounting" as defined in Article 2 subparagraph 1 (k) of the Act on Liability of Accounting Personnel, Etc. concerning the execution of special project costs (affirmative)

[3] Whether the bribe was a bribe in the crime of bribery / Standard for determining whether the profit gained by a public official constitutes a bribe as an unfair profit having a quid pro quo relationship / Whether the bribe was related to the duty

[4] In a case where the receipt of money acquired through the crime of embezzlement is not only for the internal distribution of money acquired through a crime among co-principals through a public offering, whether the crime of bribery is established with respect to the receipt of money (negative), and the standard for determining whether the nature of the received money is deemed as a bribe or as a distribution of the amount of embezzlement

[1] Article 1, Article 2 subparags. 1 and 4 of the Act on Liability of Accounting Personnel, Etc., Article 2 subparag. 4, Articles 6, 9(1), 19, and 21(1) of the Management of the National Funds Act, Article 6(1) of the National Accounting Act / [2] Article 5 of the Act on the Aggravated Punishment, etc. of Specific Crimes, Article 35(1) of the Criminal Act, Article 2 subparag. 1(k) of the Act on Liability of Accounting Personnel, etc., Article 2 subparag. 4, Articles 6(1) of the Management of National Funds Act, Article 2 and Article 17 of the National Accounting Act, Article 7 of the Government Organization Act / [3] Article 30 of the Criminal Act / [129(1), Article 13(1) and Article 133(1) of the National Intelligence Service Act

[1] Supreme Court Decision 9Du5498 delivered on February 23, 2001 (Gong2001Sang, 780), Supreme Court Decision 2003Do6534 Delivered on October 27, 2004, Supreme Court Decision 2003Do6738 Delivered on October 27, 2004 / [3] Supreme Court Decision 99Do4940 Delivered on January 21, 200 (Gong200Sang, 530), Supreme Court Decision 201Do3579 Delivered on October 12, 201 (Gong201Ha, 2510), Supreme Court Decision 201Do1797 delivered on March 24, 201 (Gong201Ha, 2510), Supreme Court Decision 2010Do1797 delivered on March 24, 2015) / [3] Supreme Court Decision 2007Do9479 Delivered on May 19, 20197

Defendant 1 and four others

Defendant 1, Defendant 2, Defendant 3, Defendant 4, and Prosecutor

Law Firm Dud and 11 others

Seoul High Court Decision 2018No1729 decided December 11, 2018

The part of the lower judgment against Defendant 1, Defendant 2, and Defendant 3 (including the part on acquittal in the grounds of appeal), and the part on Defendant 4 concerning the offering of bribe to Defendant 3 on or around September 2016 is reversed, and this part of the case is remanded to the Seoul High Court. The Prosecutor’s remaining appeals against Defendant 1, Defendant 2, and Defendant 3 and all appeals against Defendant 5 are dismissed.

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

1. As to Defendant 3’s assertion of illegally collected evidence

The lower court, on the grounds indicated in its reasoning, determined that the materials, such as the details of disbursement of the special project cost (hereinafter “special project cost”) submitted by the Prosecutor from the National Intelligence Service (hereinafter “the National Intelligence Service”) and the statement evidence acquired based on the materials were not illegally collected evidence.

Examining the reasoning of the lower judgment in light of the relevant legal doctrine, the lower court did not err in its judgment by misapprehending the legal doctrine on the admissibility of illegally collected evidence.

2. Violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (hereinafter “Aggravated Punishment of Specific Crimes Aggravated Punishment Act”) relating to each of the former President Park Jong-young (hereinafter “former President”), Defendant 1, Defendant 2, Defendant 3, and Defendant 4 (Loss by National Treasury, etc.)

A. As to the prosecutor’s ground of appeal

1) The judgment of the court below

A) Unlike the first instance court, the lower court determined that the president of the NIS does not constitute “other persons in charge of the accounting affairs of the State” under Article 2 subparag. 1(k) of the Act on Liability of Accounting Personnel, Etc. (hereinafter “the Accounting Personnel Liability Act”), and, even in the case of special project costs, the act of causing expenditure, such as the preparation of a written decision on expenditure, approval, etc., shall be dealt with by the head of the NIS Planning and Coordination Office (hereinafter “the head of the NIS”) and the head of the NIS merely uses it after being allocated by the head of the police bureau. Therefore,

B) On this premise, the lower court found Defendant 1 guilty of aiding and abetting the violation of the Specific Crimes Aggravated Punishment Act (Loss on National Treasury, etc.) and aiding and abetting the violation of the Specific Crimes Aggravated Punishment Act (Loss on National Treasury, etc.), which are the primary facts charged against Defendant 1, Defendant 2, and Defendant 3, on the grounds of such premise. ② As to Defendant 1, the part of the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Embezzlement), Defendant 2, and Defendant 3, which are the ancillary facts charged, in collusion with Defendant 4, who are the ancillary facts charged, and each part of the violation of the Aggravated Punishment Act (Loss on National Treasury, etc.) and the aiding and abetting the occupational embezzlement against Defendant 4

2) Judgment of the Supreme Court

A) The purpose of the Accounting Personnel Liability Act is to clarify the responsibilities of accounting personnel, etc. and to prevent violation of the statutes, other relevant regulations, and budget provisions (Article 1). Article 2 of the Accounting Personnel Liability Act defines accounting personnel as persons falling under any of the following subparagraphs. Under subparagraph 1, Article 2 of the Act provides that persons who carry out national accounting under the statutes governing the budget and accounting of the State, such as the National Finance Act, the National Accounting Act, and the Management of the National Funds, shall be those who fall under any of the following items and who fall under any of the following items (a) through (j) shall be defined as accounting personnel; Article 2 of the Act provides that “other persons who carry out national accounting affairs of the State” shall be defined as “other persons who are subject to the jurisdiction of the head of a central government agency” under subparagraph 1 through 3, regardless of the content of such provisions and the legislative purport of the Accounting Personnel Liability Act, and Article 2(1) through (6) of the Act provides that persons who are in charge of accounting affairs of the central government agency shall also be assigned to the head of the central government agency.

B) According to the relevant statutes and the evidence duly admitted, the following circumstances are revealed.

(1) As the head of a central government agency, he/she manages the accounting affairs under his/her jurisdiction, such as the collection and receipt of revenues under his/her jurisdiction, and the affairs concerning activities that incur expenditure and expenditure under his/her jurisdiction (Article 2 subparag. 4, Articles 6, and 19 of the National Funds Management Act, Article 6(1) of the National Accounting Act, Article 2, Article 17 of the Government Organization Act, Article 7 of the National Government Organization Act, and Article 7 of the State Agency Act).

(2) An act of incurring expenditure, which is one of the affairs concerning accounting, means a contract or other act which causes expenditure (Article 19 of the Management of the National Funds Act) and an act which finally generates a certain amount of expenditure obligation.

With respect to the execution of the ordinary budget of the NIS, the president delegated the act of incurring expenditure to the chief of the bureau, and the affairs so delegated shall be carried out by the chief of the bureau without the approval of the president. However, the special project cost is not likely to intervene by the president of the NIS who voluntarily determines the content of the obligation to incur expenditure, such as the place of use, timing and amount to be paid. Likewise, as in the instant case, Defendant 1, who is the chief of the bureau, was unaware of the fact that Defendant 1, who is the chief of the bureau, was

In the process of executing the special project cost, documents in which the name of the project and the required budget are simplified are prepared by the chief of the bureau within the NIS. However, this is merely a procedure to withdraw the amount determined by the president of the NIS from the deposit account. Thus, the preparation of the above documents cannot be deemed an act of incurring expenditure itself.

(3) The president of the NIS shall designate the user and instruct the disbursement of the special project cost. In this case, Defendant 1, Defendant 2, and Defendant 3, the president of the NIS, were assigned the special project cost to the former president.

C) Examining the above circumstances in light of the legal principles as seen earlier, Defendant 1, Defendant 2, and Defendant 3, the president of the NIS, determined the place of use, timing, and amount to be paid directly during the process of executing the special project cost, thereby performing the act of incurring expenditure and performing the act of funding, such as engaging in the act of funding by having the special project cost actually disbursed. Accordingly, Defendant 1, Defendant 2, and Defendant 3, in substance, constitute “other persons in charge of national accounting” as stipulated in Article 2 subparag. 1(k) of the Act on the Responsibility of Accounting Personnel, and thus, constitute accounting personnel.

Nevertheless, the lower court determined otherwise, that Defendant 1, Defendant 2, and Defendant 3 did not constitute accounting personnel, erred by misapprehending the legal doctrine regarding the concept of “other persons in charge of national accounting” under Article 2 subparag. 1(k) of the Accounting Personnel Liability Act, and by exceeding the bounds of the principle of free evaluation of evidence in violation of logical and empirical rules, thereby adversely affecting the conclusion of the judgment.

D) Meanwhile, among the facts charged, the prosecutor appealed on the part of Defendant 4’s violation of the Specific Crimes Aggravated Punishment Act (Loss on National Treasury, etc.), which is the primary facts charged by Defendant 1 and the primary facts charged by Defendant 1. However, there is no specific ground of appeal as to the petition of appeal or the appellate brief.

B. As to Defendant 4’s ground of appeal

For the reasons indicated in its reasoning, the lower court determined that Defendant 2 and Defendant 3’s delivery of special project cost to the former president goes beyond the scope of its intended use, and thus, the perception of illegal acquisition intent and loss to the National Treasury was recognized, and the public collusion relation between Defendant 3, Defendant 2, and Defendant 4, accounting personnel, was also recognized.

The allegation in the grounds of appeal disputing such determination by the lower court is nothing more than an error of the lower court’s determination on the selection and probative value of evidence, which belongs to the free judgment of the fact-finding court. Even when examining the reasoning of the lower judgment in light of the relevant legal principles and evidence duly admitted, the lower court did not err in its judgment by misapprehending the legal doctrine on the purpose of use of special project costs, illegal obtaining intent, recognition of government loss, and joint principal offense, or by failing to exhaust all necessary deliberations or by exceeding the bounds

3. Offering of bribe related to Defendant 1, Defendant 2, and Defendant 3’s former president

A. The judgment of the court below

For the reasons indicated in its reasoning, the lower court acquitted the Defendants of all charges on this part of the charges, on the grounds that the Defendants did not seem to have granted the special project cost to the former president from May 2013 to September 2016, by deeming that the said Defendants did not seem to have granted the special project cost as a quid pro quo relationship, and that fairness in the performance of the duties by the president is likely to be doubtful, and that there was no perception of the parties

B. Judgment of the Supreme Court

1) Legal principles

Bribery does not require a special solicitation to recognize the bribe of a public official since the fair performance of duties, the trust in the society, and the misappropriation of such act are protected, and there is no need to do so. Furthermore, money and valuables are sufficient to receive in relation to the performance of duties, and there is no need to have an individual job or a quid pro quo relationship (see Supreme Court Decision 2001Do3579, Oct. 12, 2001, etc.). Whether a public official’s benefit constitutes a bribe is an unreasonable benefit in relation to a performance of duties or quid pro quo, such as the contents of duties, the relationship between a public official and a benefit provider, the degree of interest and the timing of receiving benefits, etc. It is determined in consideration of all the circumstances such as the fair performance of duties, the social trust in the performance of duties, and the impossibility of an act of purchasing duties, and thus, it is obviously probable that a public official received money and valuables from a person who received it from a public official or who received it from a public official under 97 Supreme Court Decision 201Do97197, supra.

In addition, the crime of embezzlement is not established separately if the receipt of money acquired through the crime between co-principals is not only an internal distribution of the money acquired through the crime among co-principals. Whether such receipt of money is deemed a bribe or not should be objectively assessed and determined by comprehensively taking into account the intent of the parties to grant and receive the money, the amount of the money received, the interval between the crime of embezzlement and the receipt of the money, the time interval between the receipt and the receipt, the place and method of receipt, etc. (see, e.g., Supreme Court Decisions 94Do346, Feb. 25, 1997; 2005Do7112, Oct. 12, 2007).

2) A total of KRW 3.3 billion from May 2013 to July 2016

Examining the reasoning of the lower judgment in light of the aforementioned legal doctrine and the evidence duly admitted, the lower court did not err by misapprehending the legal doctrine regarding the duty relationship and consideration for the bribery, or by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, contrary to what is alleged in the grounds of appeal. The reasons are as follows

A) On May 2013, the former president directed Nonindicted 2 to use the government budget supported by Nonindicted 2. Defendant 1, upon the former president’s request, embezzled KRW 600 million in total from May 2013 to April 2014, and granted the former president the special project cost to the former president. Defendant 2 and Defendant 3, who is the former president, embezzled KRW 80 million in total and KRW 190 million in total from July 2014 to July 2016, and granted the former president the amount of the special project cost to the former president. In the process, Defendant 3 was demanded to grant the funds directly from the former president.

The president is the person who has the authority to direct, supervise, and personnel affairs with respect to the president. The former president, as the president’s position, instructed the said Defendants, who are the president, to embezzled and deliver the funds of the NIS, and received the special project cost embezzled by the said Defendants. The said Defendants embezzled the special project cost in order to comply with the former president’s instructions, and granted the embezzled money to the former president.

B) Comprehensively taking account of these circumstances, the former president and the president of the NIS conspireds the Defendants to embezzled government funds to vest in the former president and distribute them to the former president. Accordingly, the former president did not directly perform the act of performing the crime of embezzlement, but ordered the Defendants to commit the crime and received the aforementioned special project expenses from the said Defendants. Ultimately, granting the said Defendants the said special project expenses to the former president is merely an internal distribution of the money acquired through the crime of embezzlement. Therefore, it is difficult to view the said Defendants as a bribe, and it is difficult to view that the said Defendants had the intent to commit the said special project expenses, and thus, the crime of offering bribe is not established. The reasoning of the lower court’s reasoning that it is inappropriate to view the Defendants’ delivery of the said special project expenses to the former president as a distribution of the embezzlement, but the lower court’s conclusion that acquitted this part of the facts charged is justifiable.

3) around September 2016 KRW 200 million

Examining the reasoning of the lower judgment in light of the aforementioned legal doctrine and the evidence duly admitted, the lower court found the Defendant not guilty of this part of the facts charged, thereby misapprehending the legal doctrine on the relationship to duties and the quid pro quo of the bribery, and exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules

A) On August 2016, the former president received the special project cost from the said Defendants, and reported through the media the suspicions related to the so-called “○○ Foundation” case, such as suspicions about the ○○ Foundation, etc., the former president instructed Nonindicted 2 to suspend the receipt of the funds of the NIS. Nonindicted 2 sent this order to Defendant 3 via Defendant 4. Accordingly, Defendant 3 suspended the grant of the special project cost.

B) There is no subsequent fact that the former president instructs Defendant 3 to grant the NIS funds again.

However, around September 2016, Defendant 3 received the statement from Defendant 4 that it is difficult for the former president to pay money, and Defendant 3 voluntarily embezzled KRW 200 million of the special project cost to the former president and delivered it to the former president, considering that the former president was in need of money even though the former president or Nonindicted 2 did not request the provision of funds from the former president or Nonindicted 2.

At the time, the so-called State Farm Group case, which was the cause of suspending the provision of special project costs, was not resolved, and thus, it was not a situation to grant the special project costs again as in the previous case. Defendant 4 also reported at the lower court that Defendant 3 only transferred the former president’s situation to Defendant 3, and there was no fact that Defendant 2 only transferred the former president’s situation to Defendant 3, and that Defendant 3 would have changed money, and that this decision was delivered to Defendant 3, and that this decision was correct, and that Defendant 3 satisfied. Considering these circumstances, it is difficult to view that Defendant 3 understood that Defendant 3 was the request of the former president’s funds and that the said special project costs were delivered on a multiple basis as in the previous case. Rather, it is reasonable to view that Defendant 3, unlike the past, voluntarily and actively decided to grant the said special project costs.

C) The president, as a person in charge of the direction and supervision and personnel administration of the president, has a substantial and substantial influence over the overall administration of the NIS, such as personnel affairs, organization, and budget. The president may be dismissed at any time according to the presidential’s intent without any term of office. Defendant 3 and the former president are in a relationship with the foregoing duties, and there is no private-friendly relationship to receive KRW 200 million on the ground that there is no circumstance around the time when the situation is difficult. Moreover, granting a large amount of money voluntarily by the president to the President who has difficulty in circumstances at the time as a person in charge of the direction, supervision, and personnel administration is sufficient to be suspected of fairness in the performance of duties by the president

D) Unlike the previous money granted to the former president through Nonindicted 3, who was in charge of the presidential finance, the said special project cost was delivered to Nonindicted 4, who assist the former president’s private affairs, and was delivered to the former president. As to the background thereof, Nonindicted 2 stated in the first instance court that Nonindicted 4, a secretary affiliated with the former president, was the duties of Nonindicted 4, a secretary affiliated with the former president, and that the said special project cost was the same as Nonindicted 4. The former president was directly managed and used differently from the former president.

E) Comprehensively taking account of such circumstances, unlike the special project cost granted until July 2016, the foregoing special project cost ought to be deemed as an unjust profit having a quid pro quo relationship with the President’s duties, and constitutes a bribe granted to the former president.

4. Defendant 1 and Defendant 4’s violation of the NISA and coercion

A. The judgment of the court below

For the reasons indicated in its reasoning, the lower court: (a) instructed Defendant 4 to prepare a scheme for economically supporting a specific remuneration organization; (b) accordingly, determined that Defendant 4’s demand to provide a specific remuneration organization to a private enterprise constitutes coercion by intimidation, even though it does not constitute an act within the scope of general authority and authority of the NIS, constitutes coercion by coercion; and (c) the said Defendants had the intent to compel.

B. Judgment of the Supreme Court

The allegation in the grounds of appeal disputing such determination by the lower court is nothing more than an error of the lower court’s determination on the selection and probative value of evidence, which belongs to the free judgment of the fact-finding court. Even when examining the reasoning of the lower judgment in light of the relevant legal principles and evidence duly admitted, the lower court did not err by misapprehending the legal doctrine regarding general official authority, public recruitment, intimidation and intention of coercion, or by exceeding the bounds of the principle of free evaluation of evidence contrary to logical and empirical rules

5. The remaining facts charged by Defendant 2

A. Violation of the Specific Crimes Aggravated Punishment Act (Loss of National Treasury, etc.) and offering of bribe related to Nonindicted 5

1) As to the Prosecutor’s ground of appeal

For the reasons indicated in its reasoning, the lower court determined that Defendant 2 did not constitute accounting personnel as defined in Article 2 of the Accounting Personnel Liability Act.

However, as seen earlier, the president of the NIS constitutes accounting personnel as stipulated in Article 2 of the Accounting Personnel Liability Act with respect to special project costs. In so determining, the lower court erred by misapprehending the legal doctrine on accounting personnel as stipulated in Article 2 of the Accounting Personnel Liability Act, and exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, thereby adversely affecting the conclusion

2) As to Defendant 2’s ground of appeal

For the reasons indicated in its reasoning, the lower court acknowledged that Defendant 2 delivered KRW 100 million to Nonindicted 5 was a bribe in relation to the duties of Nonindicted 5’s Minister of Strategy and Finance.

Examining the reasoning of the lower judgment in light of the evidence duly admitted, the lower court did not err in its judgment by misapprehending the legal doctrine on the relationship with and the quid pro quo of the crime of offering a bribe, or by omitting judgment.

B. The part of the occupational embezzlement related to Nonindicted 6 and Nonindicted 7 and the offer of each bribe

1) As to the prosecutor’s ground of appeal on the offering of bribe

For the reasons indicated in its holding, the lower court reversed the first instance judgment convicting Defendant 2 of this part of the charges, and acquitted Defendant 2 of this part of the charges, on the grounds that it is difficult to readily conclude that, in the course of assisting the President, the funds that Defendant 2 paid to Nonindicted 6 and Nonindicted 7 were paid to Nonindicted 7 for their duties beyond the purpose of subsidization of activity expenses, in light of the following circumstances: (a) although the NIS had objective duty relationship with the NIS; (b) there is no position to directly participate in the personnel affairs, organization, and budget of the NIS; and (c) there is no need to obtain the assistance of the Chief Office for the cooperation of political power or the collection of information about the audience; and (c) there is no factual relationship between Defendant 2, Nonindicted 7, and Nonindicted 6; and (d) there is awareness of related persons, etc.

Examining the reasoning of the lower judgment in light of the relevant legal doctrine and the evidence duly admitted, the lower court did not err in its judgment by misapprehending the legal doctrine regarding the relationship to duties and the quid pro quo of the crime of offering of bribe, or by exceeding the bounds of

2) As to the prosecutor’s ground of appeal on occupational embezzlement (not guilty)

On the grounds indicated in its reasoning, the lower court reversed the first instance judgment convicting Defendant 2 of this part of the facts charged, and acquitted Defendant 2 on the charges, on the grounds that there is insufficient evidence to prove that Defendant 2 was unable to receive non-indicted 4, 1, and 2’s special activity expenses from the list of crimes attached to the lower judgment.

The allegation in the grounds of appeal is nothing more than disputing the lower court’s determination on the selection and probative value of evidence, which belongs to the free judgment of the fact-finding court. In light of the relevant legal principles and evidence duly admitted, the lower court did not err by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules

3) As to Defendant 2’s ground of appeal on occupational embezzlement (criminal embezzlement)

For the reasons indicated in its reasoning, the lower court determined that Defendant 2 had an intention of unlawful acquisition as to the Nos. 4 through 3 through 6 of the List of Offenses Attached to the lower judgment.

Examining the reasoning of the lower judgment in light of the relevant legal doctrine and evidence duly admitted, the lower court did not err in its judgment by misapprehending the legal doctrine on intent to acquire unlawful acquisition, contrary to what is alleged in

6. The remaining facts charged by Defendant 3

A. As to the prosecutor’s ground of appeal

1) Violation of the Specific Crimes Aggravated Punishment Act (Loss by National Treasury, etc.) concerning Defendant 5’s expenses for the chief public opinion poll of the competent office

For the reasons indicated in its holding, the lower court found Defendant 3 not to be an accounting personnel under Article 2 of the Accounting Personnel Liability Act, and found Defendant 3 not guilty on the grounds of each primary charge premised on Defendant 3’s identity, and found Defendant 3 guilty of each conjunctive charge premised on the premise that it is not an accounting personnel.

However, as seen earlier, the president of the NIS constitutes accounting personnel as stipulated in Article 2 of the Accounting Personnel Liability Act with respect to special project costs. In so determining, the lower court erred by misapprehending the legal doctrine on accounting personnel as stipulated in Article 2 of the Accounting Personnel Liability Act, and exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, thereby adversely affecting the conclusion

2) Bribery related to the cost of public opinion poll for the chief secretary office

For the reasons indicated in its holding, the lower court found Defendant 3 not guilty of this part of the charges on this part, on the grounds that it is difficult to conclude that Defendant 3 was given special project costs in consideration of duties in consideration of various circumstances as indicated in its reasoning, such as the fact that the head office of political affairs has objective business relationship with the NIS, but there is no objective business relationship or direct business relationship support, and there is considerable room to view Defendant 3 as financial support between the National Institute of political affairs and the institution that is the head office of political affairs, and there is no fact that Defendant 3 requested the head office of political affairs to provide the cost of public opinion poll expenses support or received benefits therefrom

Examining the reasoning of the lower judgment in light of the relevant legal doctrine and evidence duly admitted, the lower court did not err in its judgment by misapprehending the legal doctrine regarding the relationship to duties and the consideration for bribery, or by exceeding the bounds of the principle of free evaluation of evidence against logical

3) Offering of bribe related to Defendant 5

For the reasons indicated in its reasoning, the lower court acquitted Defendant 3 of this part of the facts charged, on the ground that it is difficult to readily conclude that Defendant 3 provided special project costs to Defendant 5 in consideration of various circumstances as indicated in its reasoning, including the details of other money and valuables used, given that Defendant 3 provided special project costs to Defendant 5, under the former president’s order, and that Defendant 5 was the money that the former president gave.

Examining the reasoning of the lower judgment in light of the relevant legal doctrine and evidence duly admitted, the lower court did not err in its judgment by misapprehending the legal doctrine regarding the relationship to duties and the consideration for bribery, or by exceeding the bounds of the principle of free evaluation of evidence against logical

B. As to Defendant 3’s ground of appeal

For the reasons indicated in its reasoning, the lower court determined that Defendant 3 committed a crime of violating the State Subsidy Act in collusion with Defendant 4, recognizing the fact that Defendant 3 received a report from Defendant 4 on the cost of public opinion polls related to the △△△△△△△, and ordered Defendant 3 to provide KRW 500 million.

The allegation in the grounds of appeal is nothing more than disputing the lower court’s determination on the selection and probative value of evidence, which substantially belongs to the free judgment of the fact-finding court. In light of the relevant legal principles and evidence duly admitted, the lower court did not err in its judgment by misapprehending the legal doctrine regarding joint principal offenders, or by exceeding the bounds of the principle of free evaluation

7. The remaining facts charged by Defendant 4

A. The lower court determined as follows on the grounds indicated in its reasoning.

Defendant 4 embezzled KRW 13.5 million, and delivered it to Nonindicted 2 is sufficiently recognized to have business relationship and quid pro quo as the secretary of the presidential secretary of Nonindicted 2’s office. As indicated in the holding, the part on Nonindicted 5-related violation of the Specific Crimes Aggravated Punishment Act (Loss of National Treasury, etc.) and the part on the violation of the Specific Crimes Aggravated Punishment Act (Loss of National Treasury, etc.) relating to the expenses for public opinion

B. The allegation in the grounds of appeal disputing such determination by the lower court is nothing more than an error of the lower court’s determination on the evidence selection and probative value, which actually belongs to the free judgment of the fact-finding court. In light of the relevant legal principles and the evidence duly admitted, the lower court did not err in its judgment by misapprehending the legal doctrine on the establishment of embezzlement, illegal obtaining intent, recognition of National Treasury loss, joint principal offender, relevance to duties and quid pro quo of bribery, or by failing to exhaust all necessary deliberations, or by exceeding the bounds of the principle of free evaluation of evidence, contrary

C. Meanwhile, Defendant 4 asserted that all the part of the violation of the Specific Crimes Aggravated Punishment Act (Loss on National Treasury, etc.) which he recruited or participated in is a blanket crime. However, such assertion cannot be deemed a legitimate ground of appeal as alleged in the ground of appeal by specifically claiming it within the submission period for the statement of grounds of appeal, or that the court below did not consider it as being subject to an ex officio decision. In light of the relevant legal principles,

8. The part of the defendant 5

A. Violation of the Specific Crimes Aggravated Punishment Act (Bribery) and acquisition of stolen property

For the reasons indicated in its holding, the lower court acquitted Defendant 5 of the part on the violation of the Specific Crimes Aggravated Punishment Act (Bribery) and the part on the acquisition of stolen goods.

The allegation in the grounds of appeal disputing such determination by the lower court is merely an error of the lower court’s determination on the selection of evidence and probative value, which belong to the free judgment of the fact-finding court. While examining the reasoning of the lower judgment in light of the relevant legal principles and the evidence duly admitted, the lower court did not err in its judgment by misapprehending the legal doctrine regarding the relationship to duties, the quid pro quo, and the stolen nature, or by exceeding the bounds of the

B. Assistance in violation of the Specific Crimes Aggravated Punishment Act (State's loss)

For the reasons indicated in its holding, the lower court acquitted Defendant 3 of all the charges on this part, on the grounds that Defendant 5 did not constitute a crime of violation of the Specific Crimes Aggravated Punishment Act (Loss to National Treasury, etc.) since Defendant 3 does not constitute a crime of aiding and abetting and abetting Defendant 5’s violation of the Specific Crimes Aggravated Punishment Act (Loss to National Treasury, etc.), and that the part of the crime of aiding and abetting occupational embezzlement included in the above charges of aiding and abetting and abetting violation of the Specific Crimes Aggravated Punishment Act

As seen earlier, Defendant 3 constitutes accounting personnel as stipulated in Article 2 of the Accounting Personnel Liability Act regarding special project costs, and thus, it is inappropriate to the lower court’s reasoning that Defendant 3 is not accounting personnel, but this part of the facts charged is not guilty. However, the lower court’s conclusion is justifiable to have determined that this part of the facts charged was not guilty. The allegation in the grounds of appeal disputing the determination of facts that led to such determination by the lower court is merely an error of the lower court’s determination of evidence selection and probative value, which actually belong to the lower court’s free judgment. Examining the reasoning of the lower judgment in light of the relevant legal doctrine and duly admitted evidence, the lower court did not err by misapprehending the legal doctrine regarding the establishment

9. As to the allegation in the grounds of appeal regarding sentencing by Defendants 1 and 3

Defendant 1 asserts that Defendant 1 was tried at the same time by being indicted separately at the adjacent time, or deprived of the opportunity to reflect the case in the latter concurrent crimes of Article 37 of the Criminal Act. Defendant 3 asserts that the lower court erred by misapprehending the legal doctrine on the requirements for suspension of execution.

Such assertion is a matter of dispute over the court’s discretion on the determination of punishment, and constitutes an assertion of unfair sentencing. However, under Article 383 subparag. 4 of the Criminal Procedure Act, only in cases where death penalty, life imprisonment, or imprisonment with or without labor for not less than ten years has been imposed, an appeal on the ground of unfair sentencing is allowed. As such, in this case where Defendant 1 and Defendant 3 were sentenced to a more minor punishment, the argument that the amount of punishment is unfair

10. Scope of reversal

Of the judgment below, the part on the violation of the Specific Crimes Aggravated Punishment Act (Loss by National Treasury, etc.), and the part on aiding and abetting the violation of the Specific Crimes Aggravated Punishment Act (Loss by National Treasury, etc.), which are the primary facts charged by Defendant 1, Defendant 2, and Defendant 3, and the part on offering of bribe around September 2016 should be reversed. Of the above part on the reversal, the remainder surrounding, ancillary, and conjunctive facts in the same body as the primary, secondary facts charged, and the reduced facts that the court below found Defendant 1, Defendant 2, Defendant 3, and Defendant 4 guilty should be reversed. Since the lower court rendered a single sentence on the grounds that the part on finding Defendant 1, Defendant 2, and Defendant 3 guilty constituted concurrent crimes under the former part of Article 37 of the Criminal Act, the part on the guilty (including the part on innocence in the grounds of appeal) and the part on Defendant 4 should be reversed.

11. Conclusion

Therefore, without further proceeding to decide on the remainder of the grounds of appeal by Defendants 1, 2, 3, and 4. Of the judgment below, the part on the guilty of Defendants 1, 2, and 3 (including the part on acquittal in the grounds of appeal), the part on Defendant 4, and the part on the non-guilty of KRW 200 million on September 2016 against Defendant 3 are all reversed, and this part of the case is remanded to the court below for further proceedings consistent with this Opinion. The Prosecutor’s remaining appeals against Defendants 1, 2, and 3, and all appeals against Defendant 5 are dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kwon Soon-il (Presiding Justice)