2016, 1073 Acceptance of bribe

A

Lee Jae-seok (Court of Second Instance) and Kim Jong-ju (Court of Second Instance)

Law Firm (LLC) B

Attorney C, D, and E

July 28, 2017

A defendant shall be punished by imprisonment for a year and a fine of twenty-five thousand won.

When the defendant fails to pay the above fine, the defendant shall be confined in a workhouse for the period converted into one day.

except that the execution of the above imprisonment shall be suspended for two years from the date this judgment becomes final and conclusive.

11,072,974 won shall be additionally collected from the defendant.

The amount equivalent to the above fine and the additional collection charge shall be ordered to be paid provisionally.

Criminal History Office

The Defendant was appointed as a policeman in 199 and served in the Seoul Gangnam Police Station on April 2009, and was transferred to the Seoul Gangnam Police Station around June 201 and was promoted to a slope from June 201 to July 19, 201, and was serving as a police officer in the Seoul Gangnam Police Station F police box from July 20, 2015 to July 20, 2015.

1. Facts of premise;

G around August 2014, when the investigation of the Seoul Gangnam Police Station (hereinafter referred to as the "H case") started from January 2015 at the request of the Financial Supervisory Service, G established the Seoul Gangnam Police Station 1 (hereinafter referred to as the "stock company" in the name of the company) and run the business of receiving registration without registration from March 1, 2015.

2. Criminal facts;

On February 10, 2015, the defendant worked with the Seoul Gangnam Police Station J and was in charge of investigation after being transferred the H case from his former officer.

On April 22, 2015, the Defendant summoned and investigated G at the J department and office of the Seoul Gangnam-gu Seoul Gangnam-gu Seoul Gangnam Police Station on 113-ro 12,000, and requested G to the effect that G’s spouse’s spouse’s K invests in treatment securities L points in charge of business affairs, such as investment consultation and attraction, etc., in a closed room within the Seoul Gangnam-gu Police Station, and acquired property profits equivalent to the amount of KRW 11,072,974 as remuneration for stock purchase deposit from G around April 28, 2015, upon receiving instructions from G around April 28, 2015, after receiving KRW 2 billion as the same deposit money from N around June 10, 2015, the Defendant received KRW 10 billion as the same deposit money from the said K Securities to obtain a status or opportunity to receive KRW 11,072,974 as remuneration for attracting stock purchase deposit).

Accordingly, the defendant received a bribe in relation to the duties of criminal investigation as a police officer.

Summary of Evidence

1. Partial statement of the defendant;

1. Each legal statement of the witness N, M and 0, and part of the witness G's legal statement;

1. Second prosecutor's protocol of examination of the accused;

1. Copy of the seventh prosecutor's statement concerning G, each prosecutor's statement of G (including each substitute part), and each prosecutor's office's statement of P and N;

1. (In the case of Seoul Central District Prosecutors' Office No. 2015-Type 37216, 63080, 2016-type 20077), the police's protocol of statement, each copy of the police's protocol of interrogation, the police's protocol of statement of N, each copy of the police's protocol of interrogation, G, and Q's protocol of statement, each copy of the police's protocol of interrogation, G, N, P, and Q;

1. A copy of the investigation report (including additional entry into the G suspect, June 23, 2015), copy of the investigation report (related to the prosecutor command, July 1, 2015), copy of the investigation results report (in July 10, 2015), copy of the investigation results report (in relation to the investigation command, July 10, 2015), a copy of the investigation report (in relation to the entry into the K (A), a report on the confirmation of deposit of a monetary reward into the K (K) account, and a report on the investigation (in calculating the profit from fees acquired by K (A)

1. Copy of the report on internal investigation (change of the person in charge, February 10, 2015), criminal place (in addition, of a suspect, April 14, 2015);

N Copy of N, copy of the prosecutor's investigation direction (as of May 7, 2015), copy of the recommendation for investigation direction (as of July 6, 2015), copy of the prosecutor's recommendation for investigation direction (as of July 7, 2015), copy of the prosecutor's recommendation for investigation direction (as of July 7, 2015), and copy of the internal investigation report (as of the result of access to the Internet homepage of the target company

1. Seoul Central District Prosecutors' Office' 2015-type 37216, 63080, and 2016-type 20077-type 2016-type 2016-type 2016-type 200777; the screen to inquire about deposit money; the sum of service fees for each MN NN-type MN-based account; output of K's bank account details (deposit) on July 30, 2015; K's account transfer (fax); MN-type 85,86-type 2016-type 2015-type 2015-type 2015-type 2015-type 2015-type 2015-type 2015-type 2015-type 2016-type 30,015-type 206-type 30,015-type 302.

Application of Statutes

1. Article relevant to the facts constituting an offense and the selection of punishment;

Article 129(1) of the Criminal Act (Concurrent Imposition of Penalties in accordance with Article 2(2) of the Act on the Aggravated Punishment, etc. of Specific Crimes)

1. Detention in a workhouse;

Articles 70(1) and 69(2) of the Criminal Act

1. Suspension of execution;

Article 62(1) of the Criminal Act (The following consideration of favorable circumstances among the reasons for sentencing):

1. Additional collection:

Article 134 of the Criminal Act

1. Order of provisional payment;

Article 334(1) of the Criminal Procedure Act

Grounds for conviction

1. Summary of the defendant's lawsuit;

The Defendant’s spouse K was not eligible to receive profitability and remuneration for the purchase and sale of shares as an employee of the first business year in 2015, and was not aware of the fact that a certain percentage of contingent remuneration was paid from the company solely by attracting simple deposit money. The Defendant was also aware of the aforementioned circumstances and requested by G for K, who was under business pressure, to receive a certain percentage of contingent remuneration. As such, there was no intention to commit bribery, since the Defendant was also aware of the aforementioned circumstances and requested by G

2. Determination

A. Facts of recognition

In full view of the evidence duly adopted and examined by this Court, the following facts can be acknowledged.

1) As a result of the examination of H, the Financial Supervisory Service selected a suspected company of violation of the Financial Investment Services and Capital Markets Act (hereinafter “Violation of the Financial Investment Services and Capital Markets Act”). On January 5, 2015, the Seoul Gangnam Police Station: (a) investigated P on January 16, 2015; and (b) N on January 26, 201 as a reference witness; (c) although P is the representative director of H, it is merely the branch office that the principal is paid a monthly wage of KRW 1.5 million; and (d) the actual operator stated that N borrowed approximately KRW 7-8 billion from G as its capital and operated H.

2) After investigating the witness of P and N, G instructed P to make a false statement to the investigation agency on the following grounds: (a) the actual operator of H makes a statement to N would incur no damage; and (b) N would make a false statement to the investigation agency, such as the statement to N would only be punished by a violation of the Financial Investment Services and Capital Markets Act if it is the actual operator.

3) On February 10, 2015, the Defendant transferred the H case from the S to the Defendant, and opened the P and N as the suspect of the instant case, and examined the Defendant as the suspect on the 16th of the same month. At that time, the Defendant reversed the statement to the effect that G is merely a person who assists in the H’s business according to the direction of G, and that the actual operator is N, which is the H’s ticket. On the 24th of the same month, the Defendant was under the direction of G establishment and established H by borrowing approximately KRW 80 million from the P without the agreement on the interest and the due date for repayment, but the Defendant was in charge of the actual operation of the company.

4) On April 22, 2015, G was investigated as a witness, and it was merely a 500 million won loan to establish H upon N’s request, and made a statement to the effect that N did not participate in H operation when asking about N’s operation. The Defendant offered contact with G for the same purpose as indicated in its reasoning in the case where G (i.e., smoking at the rest room in the Seoul Gangnam Police Station before reading the statement of witness and signing and sealing the signature and sealing; and (ii) talking with G (i) the Defendant was asked as a witness on April 22, 2015, and examined P and H director Q as a suspect; and (ii) N was asked as a witness when investigating around February 2, 2015 from this court to the effect that it was not made a statement to the effect that it was made to the effect that, from the beginning, the Defendant did not make a statement to the effect that it was made to the effect that there was any change in the content of the investigation from the beginning.

5) On April 27, 2015, K visited G to open a securities account, and G visited K to deposit KRW 10 billion with the treatment securities L branch, a representative M in the name of G on April 27, 2015, and entered into a credit extension agreement under M’s name and opened a securities account (including more than 10 lower accounts). M deposited KRW 2 billion with the securities account under its own name.

6) On April 29, 2015, based on the H-related data (the list of investors, investment amount) requested and submitted by the Defendant, P is the representative director of H. P, N receives KRW 6.765 billion from June 2014 to January 17, 2015 from 931 as an actual operator of the said company and receives KRW 6.75 billion from 931 to 9.7 billion from January 17, 2015, and reports the results of the investigation to transfer the unregistered investment business to the head of Gangnam-gu Police Station on the suspected violation of the Financial Investment Services and Capital Markets Act.

7) A prosecutor of Seoul Central District Prosecutors’ Office: (a) conducted an additional investigation on May 7, 2015, 1, 2015; and (b) conducted an investigation into the fact that G substantially is a dance investor; and (c) as long as G appears to be a principal offender in that G in the initial statement of P, inasmuch as G appears to be a dance investor; and (d) conducted an additional investigation against G to be directed again until June 26, 2015.

8) Under the direction of G on June 9, 2015, N visited L points into K to enter into a credit grant agreement through K, and opened a securities account (including 60 account) in its own name. On the following day, N transferred KRW 2 billion in the securities account under the name of M to the securities account under the above N, and deposited KRW 8 billion (1 million in KRW 800,000 in total) in addition to the stock trading deposit amount.

9) On June 18, 2015, the Defendant investigated N on the 23th of the same month, and investigated G as a suspect, and at that time, expressed that G is an auditor’s intent to assist K to attract the deposit. Meanwhile, N and G stated on July 1, 2015 that H’s actual operator is N and G merely lent its capital on a past personal basis.

10) On July 2, 2015, the Defendant reported to the head of Seoul Gangnam-gu Police Station the opinion that the name of the crime is not added on the grounds that G et al. actually invested in overseas futures and operated in connection with the company trading system, etc., based on the fact that G et al., operated the H in the operation of the H on July 2, 2015, and carried out the daily investment business without registration. On the 10th of the same month, the Defendant sent the H case to the Seoul Central District Prosecutor’s Office under the direction of the prosecutor T on the 10th of the same month.

11) On March 4, 2016, G, N, and Q received from investors 2,579 under the Seoul Central District Prosecutors' Office 2015-Type 37216, 63080, and 2016-type 20077 and received and received a total of KRW 113,916,193,861 from investors 2,579, and charged for committing a collective investment business without obtaining financial investment business authorization. On July 22, 2016, G, N, and Q was sentenced to imprisonment with prison labor for 4 years, N, and Q, each of which was found guilty for committing a collective investment business after receiving a total of KRW 829,900,00 from investors in the first instance (Seoul Central District Court 2016, 152) of the first instance court (Seoul Central District Court 2016, 200,000 and engaging in the collective investment business without authorization.

12) The personnel evaluation factor of treatment securities is the attraction of personal assets, the attraction of corporate assets, the attraction of new customers, the creation of company profits, etc., and the points are reflected in the personnel evaluation factor. If a business employee attracts a large amount of deposit for trading stocks, he/she will obtain good scores in the personnel evaluation, and if a customer's fee for trading stocks occurs, he/she will be paid profitability and remuneration to the relevant business employee in accordance with the performance remuneration rules. The results of the trading of stocks at KRW 10 billion on the deposited account of the results of the trading of stocks at KRW 42,303,461 (Evidence 1162 pages of evidence record).

13) Since K entered in the treatment securities on October 15, 1998, K had worked in U team and had been moved to L branch on December 29, 2014 and had been employed as a business employee from January 1, 2015. On July 30, 2015, K received at L branch, KRW 8,618,379, and KRW 5,870,446, and KRW 10 billion, among KRW 300,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000 won.

B. Determination

1) The acceptance of a bribe refers to the acceptance of money and valuables with the intention of acquiring it, so there is no influence on the establishment of the crime of acceptance of bribe when there is a perception that a bribe is received in connection with his/her duties (see Supreme Court Decision 2013Do6107, Jul. 25, 2013). The recognition of a quid pro quo relationship is sufficient to recognize facts or circumstances concerning the existence of a quid pro quo in the money and valuables that are received, and it is not necessary until the legal judgment that it constitutes a bribe is no longer necessary. In addition, in cases where a position or opportunity to acquire property benefits is deemed a bribe, the future uncertainty may be a bribe, and it shall not be superior, unless it is absolutely impossible.

2) In light of the foregoing legal doctrine and the following circumstances revealed in the argument of the instant case, it is reasonable to deem that the Defendant acquired pecuniary benefits with a quid pro quo in relation to his/her duties by having his/her spouse receive the status or opportunity to receive contingent remuneration as indicated in the judgment by taking advantage of the status of police officer (see Supreme Court Decision 2014Do8113, Oct. 15, 2014).

A) On April 22, 2015, the Defendant demanded from G with no pro rata relationship as stated in its reasoning. If there is no benefit from K to attract a new customer’s share purchase deposit, the Defendant is without reason to assume risk and demand G with whom the investigating party is subject to investigation to deposit a share purchase deposit.

B) Unlike P and N’s statement in the course of the investigation upon transfer of H case, the Defendant was the actual operator of H, while having become aware of the fact that G was operated by G (Evidence 3: 1650 pages). However, in the process of reporting April 29, 2015, the Defendant attempted to enter P and N0 and sent the case to the Defendant as a result of prosecution. On June 23, 2015, the Defendant was placed under the direction of the prosecutor, and the Defendant added G as a suspect (Evidence 1:246,271 pages). Moreover, the Defendant only specified the amount of damage with the victims based on the materials submitted by the suspect N of H in the instant case, and conducted an analysis of video CD containing the investment explanation process provided by the Financial Supervisory Service in relation to the violation of the Regulation on the Act on the Regulation of Receiving without Permission, and conducted an e-mail investigation against one investor (Evidence 3:10911 pages of the evidence record).

C) While being tried at the Suwon District Court, G was under a situation in which he was released as bail and again investigated as H case while being tried at the Suwon District Court, and there was a possibility that he would be re-detained depending on the investigation intent of the Defendant, who is an investigator in charge, and thus, he was difficult to refuse the Defendant’s request (Evidence No. 1 88 pages).3)

D) The Defendant stated at the prosecution that K had been aware of a person operating the advisory company after having been transferred to a business position on January 1, 2015, and had been able to get a lot of stress on securing customers. The advisory company stated to the effect that K was informed of the contact details of G to K that it would not be at issue because it did not deposit a large amount of funds at once with investors’ investments (3rd page of evidence record 1646), after hearing the statement that K would deposit KRW 10 billion from G on April 27, 2017, unlike the Defendant’s explanation, and that it would have been likely that the problem would not arise if a large amount of funds were deposited at once.

E) During the investigation of H, the Defendant did not take any particular measure despite hearing the statement that he deposited the instant share purchase deposit from K (around the investigation of the instant case, the Defendant asked N to withdraw the said deposit after deposit of KRW 10 billion with the said deposit money, but did not strongly demand G to withdraw the said deposit money from the mind that he would not withdraw the said deposit money; and (b) in fact, I continued to trade the said shares with the said treating securities account by the police’s search and seizure.

F) Even if K is not eligible for profitability and remuneration as an employee of the first year business, as alleged by the Defendant, since 2016 when K was an employee of the second year business, it would be entitled to profitability and remuneration. Therefore, the Defendant appears to have sufficiently recognized that K could obtain pecuniary profits by recognizing the business performance in accordance with the inducement of stock trading margin.

2) Furthermore, 11,072,974 won of the contingent remuneration paid by K is calculated based only on asset net attracting, business performance due to attracting new customers, out of the remuneration paid to K by entering into a credit extension agreement with M and N, and attracting the deposit money for stock purchase and sale. As such, the property value of 'the position or opportunity to receive contingent remuneration' that the Defendant made to obtain by K is equivalent to the above contingent remuneration. Therefore, the amount of fine and the amount of penalty shall be calculated based on the above value (see the foregoing Decision 2014Do8113).

Reasons for sentencing

1. Scope of applicable sentences under law: Imprisonment for one month to five years, and fine for 22,145,948 won to 5,364,870 won; and

2. Scope of recommendations according to the sentencing criteria;

[Determination of Punishment] Type 2 of Acceptance of Bribery (not less than KRW 10 million but less than KRW 30 million)

【Special Convicted Person】

[Scope of Recommendation] One year to Three years (Basic Area) imprisonment

3. Determination of sentence;

The crime of this case was committed by a police official to attract large amounts of funds to a securities company where a police official takes charge of his/her spouse’s duty as a deposit for trading stocks, and to have his/her spouse receive the performance bonus therefrom. Accordingly, the social trust in the fairness and infiniteness of judicial police duties was damaged. The Defendant continued the investigation without having to return a large amount of deposit for trading stocks even though he/she knows that it was deposited in the investigation process of H case, and it is also deemed that the Defendant continued the investigation without having to return it, and it was somewhat passive or passive.

However, for about 18 years of service as police officers, the defendant has served in good faith, such as receiving a 10 conference commendation without disciplinary action, and has been responsible for his own decent speech and behavior, and at present I has more favorable conditions such as withdrawing most of the deposit money.

In addition, considering the age, character, conduct and environment of the accused, motive and consequence of the crime, circumstances after the crime, etc. and various circumstances shown in the arguments, the punishment as ordered within the range of recommended sentencing guidelines shall be determined and the execution of imprisonment shall be suspended.

The presiding judge and judges;

Judges Sung Jae-in

Judges' Index

1) On September 2, 2016, G was sentenced to 13 years of imprisonment by the Seoul High Court on September 2, 2016 due to the act of reception without registration through I, and confirmed by the Supreme Court on January 25, 2017, and was sentenced to four years of imprisonment by the Seoul High Court on June 21, 2017 due to the act of reception without registration through H.

2) A prosecutor indicted a public prosecutor to the effect that property gains equivalent to 11,072,974 won of contingent remuneration are a bribe. However, as seen thereafter, the instant bribe is not the contingent remuneration itself, but the position or opportunity to receive contingent remuneration, and thus, it is recognized as stated in its reasoning without changing the indictment to the extent that it does not pose a substantial disadvantage to the defendant’s exercise of his right

3) From this Court, G was aware of the fact that it had already been delivered cash to the Defendant through Brazil, and 1 was plans to deposit KRW 10 billion in the treatment securities around that time, and the statement was made to the effect that the talk about the deposit money in the instant judgment was divided into a comfortable atmosphere. However, in light of the following: (a) the Defendant directly demanded G to deposit the deposit money; (b) G directly visited G branch of the treatment securities after five (5) days thereafter; (c) opened a securities account; and (d) deposited KRW 2 billion in the following day; (d) the prosecution did not mention any mention about the opening of the treatment securities account; and (e) he stated that V was arrested in connection with the details of the confession, and that he decided to make a confession prior to making a statement on the instant case (Evidence 1 right 90 pages of evidence record), it is difficult to believe this part of G’s statement as it is.