Defendant 1 and three others

Prosecutor

Egypt 1 other

Attorney Kim Jae-jin

Seoul Western District Court Decision 2004Gohap285, 292 (merged) Decided February 3, 2005

The part of the judgment of the court below against Defendant 1, 2, and 3 shall be reversed.

Defendant 1, Defendant 2, and Defendant 3 are acquitted.

The prosecutor's appeal against the defendant 4 is dismissed.

1. Summary of grounds for appeal;

The lower court determined that: (a) Defendant 1 received KRW 70,200,000 from June 2001 to July 2002, 13 times as indicated in the annexed Table 3 of the lower judgment, and (b) Defendant 2 received KRW 26,00,000 in total over 13 times as indicated in the annexed Table 4, and received KRW 300,000,000 from June 3, 2001 to 300,000,000,000 among Defendant 2 during the period from September 3, 2001 to 200, as indicated in the annexed Table 4, and (c) Defendant 3 received KRW 300,000 from September 202 to 304, as stated in the annexed Table 2000, and received KRW 300,000 from Defendant 3 to 4.5,200,000.

However, in light of the following: (a) Nonindicted 1’s statement on the place, time, and period of offering of a bribe is very specific and consistent in important parts; (b) Nonindicted 1’s statement is reliable in light of the statement’s initial attitude; and (c) Nonindicted 1’s statement in the prosecution acknowledged the fact that he did not deliver all the money that he had already received from the co-defendant 1 to the Defendants; and (c) there is little possibility of the so-called “delivery accident” by Nonindicted 1 in light of the fact that Nonindicted 1 made a clear distinction between the money used by himself and the money that he had already received to the Defendants; and (d) there is time for Nonindicted 1 to receive some money from Defendant 1 and Defendant 2, but the fact that he received some money from Nonindicted 1; and (d) the fact that part of Nonindicted 1’s statement was inconsistent is naturally natural in light of the limitation of memory on the previous day and the degree of Nonindicted 1’s initial statement that it was difficult to be consistent with the Defendants’ statement; and (d) the judgment of conviction of the facts charged against the Defendants.

2. Determination

(a) Amendments to Bill of Indictment;

Before the judgment on the grounds for appeal is examined ex officio prior to the judgment on the grounds for appeal, the prosecutor applied for the amendment of the indictment to which Defendants 1, 2, and 3 apply for the acceptance of bribe as stated in the annexed list of crimes in the annexed list of crimes, and the trial partially permitted (the trial rejected the amendment of the indictment to which Defendants 1, 2, and 3 applied for the amendment of the indictment to which Defendants 1, and 3 apply for the acceptance of bribe as stated in the annexed list of crimes). Thus, the subject of the trial at the court below is different from the judgment at the court below. In this respect, the part against Defendants 2, and 3 among the judgment below is no longer maintained.

B. misunderstanding of facts or misapprehension of legal principles

However, the prosecutor's amendment to the indictment is to change the date and time of partial acceptance of bribe and specify the place of acceptance of bribe. The prosecutor's assertion of misunderstanding of facts or misapprehension of legal principles is still subject to the judgment of this court. Thus, this part of the argument shown in the above grounds for appeal should be examined below.

(1) The facts charged of this case (the altered facts charged against Defendants 1, 2, and 3)

From May 24, 1999 to December 31, 2002, Defendant 1 served as a police station investigation and a slope belonging to the criminal department, and engaged in investigation of violent incidents and control of and recognition for a retired establishment within the jurisdiction, and Defendant 2, from February 9, 2001 to July 27, 2002, while serving as a senior police station in charge of crime prevention and crime prevention guidance of the same police station, and a senior police officer in charge of crime prevention and crime prevention guidance of the same police station; Defendant 3, while serving as a senior police officer in charge of crime prevention and crime prevention guidance of the same police station from July 28, 200 to April 30, 203, Defendant 4, Defendant 2, while serving as a senior police station in charge of crime prevention and crime prevention guidance of the same police station; Defendant 2, from March 29, 200 to the police station in charge of criminal investigation and escape from the jurisdiction of the same police station;

(A) On June 2001, Defendant 1 received KRW 4.5 million from Non-Indicted 1 to Non-Indicted 1 of the annexed Table 1 of the Crimes (However, as seen above, partial amendment of the Bill of Indictment was rejected, the (title omitted) No. 1 of the annexed Table 1 of the Crimes Between the Si and the Haman of December 2002 [the (title omitted) No. 1 of the Seoul (title omitted) Police Station located in the (title omitted), and the (title omitted) No. 1 of the annexed Table 1 of the Crimes Between the Si and the Haman of December 2002, and the (title omitted) No. 15 of the annexed Table 1 of the Crimes Between the Si and the Haman of Seoul (hereinafter referred to as the "Seoul (Seoul) Police Station No. 2002) and the (title omitted) No. 7808, Sep. 15, 2002; hereinafter referred to as the "No. 78,000.

(B) On June 2001, Defendant 2 received KRW 26 million in total on 13 occasions from the Si to the Haman on July 2002, including the receipt of KRW 200,000,000 from Nonindicted 1 under the pretext of continuous crackdown on (trade name omitted) illegal retirement closure facilities operated by Co-Defendant 1 at the office of the (trade name omitted) police station guidance and public morals office in Seoul (the name omitted) Police Station located in Seoul (the name omitted) and the receipt of KRW 26,00,000,000 from that Si to July 2, 2002, as indicated in attached Table 2.

(C) On September 2002, Defendant 3 received KRW 12 million in total eight times from around 2003 to Haman on April 2003, as indicated in the annexed Table 3, from Non-Indicted 1’s private office located in Seodaemun-gu, Seoul (Seodong omitted) on the part of Non-Indicted 1, the control over the illegal retirement and closure facilities (trade name omitted) operated by Co-Defendant 1, which was operated by Co-Defendant 1, and received KRW 1.5 million from around 200 to around 200, as described in the annexed Table 3.

(D) On March 2003, Defendant 4 received KRW 2.5 million in total by giving and receiving KRW 2.5 million from each of the group of monthly maintenance under the name of the co-defendant in the name of the following: (a) Nonindicted 1 continued to put the control over the illegal retirement closure facilities (title omitted) operated by Co-defendant 1 from the criminal department office of the Seoul (name omitted) Police Station located in Seoul (Seoul) Police Station; and (b) Defendant 4 received KRW 2.5 million in total from each of the group of monthly maintenance under the pretext of the request for implied approval of the illegal retirement business.

(2) The judgment of the court below

For the following reasons, the lower court determined that the charged facts prior to the instant change constituted a case where there is no proof of a crime, and thus, acquitted under the latter part of Article 325 of the Criminal Procedure Act

(A) Defendant 1, Defendant 2, Defendant 3, and Defendant 4 (hereinafter “Defendants”) did not receive the same money from Nonindicted 1 under the same name as indicated in the facts charged prior to the instant change, and all the facts charged prior to the instant change are denied (However, in addition to the facts charged prior to the instant change, Defendant 1 refers to the fact that Defendant 2 received KRW 1.3 million from Nonindicted 1 to 3 times, separately from the facts charged prior to the instant change, as the value of rice culture, etc., and Defendant 2 received KRW 1.3 million from Nonindicted 1 to 3 times, separately from the facts charged prior to the instant change). While the evidence submitted by the Prosecutor submitted by the Prosecutor, it is only the statement by Nonindicted 1 that delivered the Defendants the same money as indicated in the facts charged prior to the instant change, and therefore, in the instant case, whether it is an essential issue whether such Nonindicted 1’s statement is trustable as it is.

1) From June 2001 to December 2002, Nonindicted Party 1: (a) 18 times to Defendant 1; (b) 13 times from June 2001 to July 2002 to Defendant 2; (c) 8 times from September 2002 to April 2003 to Defendant 3, each of which is the multiples near the police station (title omitted); (d) the line of money on a regular basis to Defendant 3 is in the vicinity of the (title omitted); (e) the line of money on a regular basis; (e) the line of money is in the vicinity of the police station; and (e) the owner of the multiples located near the (title omitted); (g) the owner of the (title omitted); and (g) Nonindicted Party 2, 3, and Nonindicted Party 4, who is the owner of the (title), made a statement in the lower court, was never aware of Nonindicted Party 1 at all.

In addition to the above multiples existing, Nonindicted Party 1 had several sides, and the time has long been long so that they could not memory each other. However, considering such circumstances, it is extremely difficult to understand that Nonindicted Party 1 did not make any statement about the trade name, trade name, trade name, location, etc. of the multiples regularly visited 39 times during the period of up to 3 years (at the same time, Nonindicted Party 1 first opened the phone to the Defendants and opened the phone to the multiples that he designated). Therefore, even if Nonindicted Party 1’s cash delivery to the Defendants is true, it cannot be seriously doubtful as to whether it was made in the multiples near the police station as described in the facts charged prior to the amendment of this case.

2) According to the statement of the court below and the statement attached to the statement of non-indicted 1, such as the statement of the court below and the statement of the statement of non-indicted 1, it is acknowledged that the non-indicted 1 received a separate amount from the co-defendant 1 under the pretext that he would pay to the police officers whenever there is a name or light investigation, etc., as stated in paragraph (1) of the crime in the judgment below, and that the sum of the amount reaches 33 million won. However, the non-indicted 1, as stated in the facts charged prior to the change of this case, stated in the prosecutor's office on the 6th prosecutor's statement (the "five times" in the investigation record, but it appears that the non-indicted 1 had received a separate amount from the co-defendant 1 as above, or that he had received a separate amount from the above co-defendant 3,000 million won on a regular basis, and there is no doubt that he had received it from the non-indicted 1 to the above 300 billion won on a regular basis.

3) 원심에 제출된 서울출입국관리사무소장 작성의 사실조회의뢰사항 회신의 기재에 의하면, 피고인 1은 2002. 10. 22.부터 같은 달 26.까지, 그리고 2002. 11. 25.부터 같은 달 30.까지 해외에 출국하여 있었던 사실이 인정되는바, 공소외 1은 이 기간에도 피고인 1을 (명칭 생략)경찰서 부근의 다방에서 만나 돈을 건넸다고 진술하고 있어 이에 비추어 보아도 공소외 1 진술의 신빙성에 의심을 품지 않을 수 없다.

4) 공소외 1은 처음 검찰에 출두하면서 제출한 자수서와 2004. 7. 22.의 제1회 진술을 통해서는 ‘ 원심 공동피고인으로부터 2001. 6.경부터 2002. 5.경까지 약 1억 원 가량을 받아 (명칭 생략)경찰서 풍속계의 반장으로 있던 피고인 2에게 매월 약 200만 원씩 총 2,000만 원 가량을 주었고, 나머지 돈은 모두 본인이 개인적으로 사용하였다’고 진술하였다가, 이틀 뒤인 2004. 7. 24.의 제2회 진술에서는 ‘피고인 2에게 2002. 7.부터 2003. 4.까지도 매월 200만 원씩을 교부하였고, 그 밖에 형사계에 있는 피고인 1에게도 2001. 6.경부터 2003. 4.경까지 형사계에 있는 9개반을 기준으로 50만 원씩 450만 원 혹은 30만 원씩 270만 원을 매월 건넸다’고 진술하였고, 2004. 7. 26.의 제4회 진술에서 검사가 피고인 1은 2002. 12.에 정년퇴직하였다는 점을 지적하자 ‘피고인 1이 정년퇴직하는 것을 몰랐다. 1년 더 연장하였다고 들었다’고 하면서도 ‘2003. 초에 피고인 1로부터 피고인 4를 소개받아 그 때부터는 피고인 4에게 강력계 5반을 기준으로 50만 원씩 매월 250만 원을 건넸다’고 진술하였으며, 2004. 7. 29.의 제5회 진술에서는 검사가 피고인 2가 2002. 7. 28. 파출소로 발령이 난 사실을 지적하자 ‘그 후로는 피고인 2의 후임인 피고인 3에게 매월 150만 원씩을 교부하였다’고 진술하였다.

In the fourth statement, Non-Indicted 1 made a statement to Defendant 1 on the grounds that he provided the amount of KRW 4.5 million per month or KRW 2.7 million per month to Defendant 4 on the basis of the nine half of each month on the basis of the five half of each month. In the third statement, Non-Indicted 1 made a statement to the effect that “Non-Indicted 1 provided no memory as to why he provided the amount of KRW 2.5 million per month on the basis of the five half of each month,” and that “Non-Indicted 1 provided no money by finding himself to the office of the police officer.” However, in the fourth statement, Non-Indicted 1 made a statement to the effect that he provided money to Defendant 4 by finding himself in the office.”

In light of the developments leading up to Nonindicted 1’s confession of the facts charged prior to the instant amendment and the process of changing the details of statements, there is room to see that Nonindicted 1 was corrected in compliance with the truth according to the evidence that was presented after Nonindicted 1 was investigated by the prosecution. However, there is no doubt as to whether Nonindicted 1 was given a reply to change the term of office in a convenient manner in response to the situation at the time when Nonindicted 1 was asked by the prosecutor.

5) (명칭 생략)경찰서의 개별 사무분장표(수사기록 제565쪽), 수사과 배치명단표(수사기록 제566 내지 568쪽), 본서 직원명단표(수사기록 제580 내지 609쪽)의 각 기재와 피고인 4의 진술에 의하면, 공소외 1이 피고인 4에게 돈을 건넸다고 하는 2003. 3. 내지 4. 당시 (명칭 생략)경찰서 형사계에는 당직반이 3개반, 강력반이 5개반, 마약반이 1개반 있었고, 그 중에 피고인 4는 당직 2반에 소속되어 있었던 사실이 인정되는바, 공소외 1이 당직반 소속 경찰관인 피고인 4에게 강력반 5개반을 기준으로 50만 원씩 매월 250만 원을 건넸다고 하는 것도 쉽사리 수긍이 가지 않는다( 공소외 1은 원심에서 이에 대하여 당시 당직반이 5개반이었고, 강력반이 아니라 당직반에 돈을 교부한 것이라고 하여 이전과는 다른 내용의 진술을 하였다).

6) In addition, Nonindicted 1’s confessioned the fact that he provided a bribe to a police officer but was investigated without being scambling, the fact that he avoided the quality of the Defendants in the process of investigation by the prosecution, and the fact that he was locked without being present for several months after being adopted as a witness in the trial process of the lower court in this case, it is deemed that the circumstances leading Nonindicted 1 to question the credibility of Nonindicted 1’s statement.

(B) Not only the following circumstances acknowledged by the evidence submitted by the prosecutor, i.e., the co-defendant 1 did not have been discovered once during the period of delivering the money as stated in Paragraph 1 of the crime in the judgment of the court below to the non-indicted 1. In light of the fact that the co-defendant 1’s business place was exposed to the crackdown on the (title omitted) police station’s crime guidance around October 2003 and was charged, and the non-indicted 1 was relatively well aware of the defendants (the defendant 4 was not aware of the non-indicted 1). However, the non-indicted 1 made an accurate statement on the appearance of the defendant 4’s age at the beginning of the 50th century and the head, and the defendant 1 did not have been aware of the fact that the defendant 1 had his head, but did not have head, and the (title omitted) police station did not have a strong criminal relation between the defendant 2 and the defendant 40 to 34 on duty.

(C) However, in full view of all the circumstances that raise doubt as to the credibility of Non-Indicted 1’s statement consistent with the facts charged prior to the instant alteration, the above Non-Indicted 1’s statement is determined as follows: (a) at the date and time as indicated in the facts charged prior to the instant alteration, and at the same place as indicated therein, it does not extend to the evidence with probative value sufficient for the judge to conclude that there is no reasonable doubt as to whether the above amount was regularly delivered to the Defendants; and (b) other evidence submitted by the prosecutor is insufficient to acknowledge the facts charged prior to the instant alteration, and there is no other evidence to acknowledge it otherwise.

(3) Judgment of the court below

(A) We examine the following circumstances as well as the reasons properly explained by the court below.

1) As seen above, on the basis of the statement of change made by Nonindicted Party 1 after the judgment of the court below, the prosecutor applied for changes in the place and date of the acceptance of bribe by Defendant 1, Defendant 2, and Defendant 3 to the effect that the part pointed out on the grounds of innocence is supplemented by the judgment of the court below, and partially permitted the trial by the court below as stated in the annexed list of crimes. The main contents are as follows: (a) the entire place and time of the acceptance of bribe over 39 times of Defendant 1, Defendant 2, and Defendant 3 are specified as specific multiples or offices, etc.; and (b) Defendant 1, among the date of the acceptance of bribe by Defendant 1, as stated in the annexed list 1.17, “Seman on November 1, 2002,” which was the period during which Defendant 1 was traveling abroad, changed to “Seman on December 17, 200

In light of the following circumstances, the lower court’s ruling and the first instance court’s determination that Nonindicted Party 1’s statement to the effect that Nonindicted Party 1’s statement to the effect that it is difficult for Nonindicted Party 1 to reach the first instance court to keep the first instance court’s order, and that Nonindicted Party 1’s statement to the effect that Nonindicted Party 1’s statement to the effect that it is difficult for Nonindicted Party 2 to keep the first time and to keep the first time and present the second time and present the second time and present the first time and present the second time and present the second time and present the second time and the second time and present the second time and present the second time and present the second time and present the second time and the second time and the second time and later, it is difficult for Nonindicted Party 1 to keep the first time and present the second time and present the second time and present the first time and present the second time and present the second time and present the second time and present the second time and present the second time and present the second time and present at the time and present. In so doing, it is difficult to find that the second time and present.

2) In light of the fact that Defendant 1 and Defendant 2 differently received some money from Nonindicted Party 1, the prosecutor asserts that this part of the facts charged is guilty. Thus, the following circumstances acknowledged by the court below and the evidence duly examined and adopted by the court below, i.e.,: ① Nonindicted Party 1 made a statement from the court below on September 2001, KRW 270,000,000,000,000,000,000 won for the first time, and KRW 27,000,000,000,000,000 won for the first time among September 202, and Defendant 2 made it difficult for the public prosecutor to separately conclude that Defendant 1 and Defendant 2 made a statement on the part of the facts charged, such as Defendant 1’s statement to the court below, and Defendant 2 made it difficult for the public prosecutor to separately conclude that Defendant 1 and Defendant 2 made a statement on behalf of Nonindicted Party 1 to give money for the purpose of investigation.

3) The prosecutor acknowledged the fact that Nonindicted 1 did not deliver all the money already received from the Defendant to the Defendant at the prosecution, and argued that there is little possibility of "delivery accident" by Nonindicted 1 in light of the fact that he did not clearly distinguish between the money used by him and the money delivered to the Defendants in the name of money. However, as seen above, Nonindicted 1 made a repeated statement only on the fact that he had regularly delivered the money to the Defendants as indicated in the facts charged by the court below and the court of the trial, which is recognized by the evidence duly investigated and adopted by the court below and the court of the trial, and there is no objective material to confirm the accurate amount of money between the widths of each month to the Defendants, even according to Nonindicted 1’s statement to the court of the court below, it is difficult to conclude that the money received from the Defendant to the court of the court below did not have been designated and reported to the co-defendant, and that the co-defendant’s statement to the court below did not have any specific usage from Nonindicted 1, 1, and thus, it is difficult to conclude the possibility of delivery of money to the Defendants.

4) Meanwhile, the lower court’s statement on the top of the Defendant was merely a fact that Nonindicted Party 1 introduced Nonindicted Party 2 to Defendant 2 on March 2001, and on that day, Nonindicted Party 1 testified to Defendant 2 with an envelope in the name of the meal expenses. It is not directly related to this part of the facts charged (the facts charged against Defendant 2 is the bribery from June 2001 to July 2002).

(B) In the case of the crime of bribery, in order for the defendant who was selected as the bribe to be convicted only with the statement of the receiver in a case where there is no evidence, such as financial data to support the fact of the bribery, the evidence should be admissible, and there should be credibility to exclude reasonable doubt. In determining credibility, not only the rationality, objective reasonableness, consistency before and after the statement itself, but also the human nature of the defendant, and in particular, in the case where there is a suspicion of a crime committed against him and there is a possibility that the investigation is being initiated, or an investigation is being conducted, if there is a possibility that the evidence of the statement might not be denied, it should also be examined in addition, whether there may affect the statement in a case where there is a suspicion that the statement might be used for the crime, and if there is a possibility that the evidence of the statement would not be denied (Supreme Court Decision 200Do5701 Decided June 11, 202).

(C) Ultimately, in finding the Defendants guilty of the instant facts charged, there are various questions as seen above, and the evidence submitted by the Prosecutor up to the time of the trial cannot be readily concluded as guilty solely on the basis of the evidence presented by the Prosecutor up to the time of the trial. The burden of proving the facts charged in a criminal trial lies with the prosecutor, and the finding of the guilty ought to be based on the evidence with probative value that leads to a judge to have a conviction that leads to the truth of the facts charged to the extent that there is no reasonable doubt. Thus, if there is no such evidence, even if there is no doubt about the Defendant’s guilt, it shall be determined as the interests of the Defendant (see Supreme Court Decision 2003Do6644, Feb. 13, 2004, etc.).

(D) If so, as the court below properly states, there is insufficient evidence to acknowledge the facts charged of this case. Thus, we affirm and affirm the fact-finding of the court below and the selection and decision of evidence which was conducted in the process, and there is no error of law by misunderstanding facts or misunderstanding legal principles as to the violation of the rules of evidence, and the prosecutor's assertion is without merit

3. Conclusion

Therefore, the part of the judgment of the court below against Defendant 1, 2, and 3 is reversed ex officio pursuant to Article 364(2) of the Criminal Procedure Act. Since the prosecutor's appeal against Defendant 4 is without merit, it is dismissed in accordance with Article 364(4) of the Criminal Procedure Act.

The summary of the facts charged in this case against Defendant 1, Defendant 2, and Defendant 3 is as seen in the determination of the grounds for appeal in this part. As seen in such determination, this part of the facts charged falls under the case where there is no proof of a crime, and thus, is acquitted pursuant to the latter part of Article 325 of the Criminal Procedure Act.

It is so decided as per Disposition for the above reasons.

[Attachment Form 5]

Judges Lee Jae-in (Presiding Judge)