In a case where the first instance court rendered a not guilty verdict on the facts charged on the grounds that there is insufficient evidence to exclude a reasonable doubt after undergoing the examination of evidence, such as the examination of witness, whether the first instance court may conclude that there was an error of misunderstanding of facts in the determination of the first instance court on the sole basis of the fact that there may be a probability or doubt as to the facts partially opposed

Articles 308 and 325 of the Criminal Procedure Act

Supreme Court Decision 2015Do11428 Decided February 18, 2016 (Gong2016Sang, 474)

Defendant

Defendant

Attorney Kim J-chul

Seoul Eastern District Court Decision 2014No1666 decided May 22, 2015

The judgment of the court below is reversed, and the case is remanded to the Seoul Eastern District Court Panel Division.

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

1. The finding of guilt in a criminal trial shall be based on evidence with probative value, which can lead a judge to feel true beyond a reasonable doubt. If there is no such proof, even if there is suspicion of guilt against the defendant (see, e.g., Supreme Court Decisions 2001Do2823, Aug. 21, 2001; 2005Do8675, Mar. 9, 2006). In addition, in light of the fact that the criminal appellate court has the nature as a post-trial but has the nature as a follow-up trial under the Criminal Procedure Act, and the fact that the first instance court found that there is insufficient evidence to exclude a reasonable doubt after undergoing the examination of evidence, such as the examination of witness, and thus, it cannot be found that there is insufficient evidence to find the defendant guilty of the facts charged, even if there is sufficient probability or doubt as to the facts partially opposed to the first instance trial as a result of the appellate trial’s examination, if it can sufficiently eliminate the reasonable doubt that the first instance court has raised, then it cannot be found guilty.

2. A. The summary of the facts charged in the instant case is that “the Defendant received KRW 100 million from Nonindicted 2 under the pretext of solicitation regarding the affairs handled by the registry official so that the correction registration is made in collusion with Nonindicted 1 on November 17, 2011 to correct the area recorded in the register as the area in the forest register with respect to the forest ( Address 1 omitted) at the time of strike (hereinafter “instant land”).”

B. On November 17, 2011, the Defendant received KRW 100 million from Nonindicted 3 as the expense for the registration of inheritance and revision of the instant land, and delivered it to Nonindicted 1 via Nonindicted 4, and there is dispute that Nonindicted 2 did not receive from Nonindicted 2 the expense for the registration of revision of the land size for the registry official.

C. The first instance court found the Defendant not guilty on the ground that Nonindicted 2 conspired with the Defendant for the purpose of using the purchase price for the instant land and the inheritance registration expenses, etc. based on the fact that Nonindicted 3 obtained KRW 850 million from Nonindicted 3, and obtained a guilty verdict of the criminal facts by fraud. The KRW 100 million, stating that the Defendant was issued, was part of the money acquired from Nonindicted 3 on November 17, 201, based on the facts, etc., which is part of the money that the Defendant acquired from Nonindicted 3 on the charge of the instant case.

On the other hand, the court below reversed the judgment of the court of first instance and found the defendant guilty on the grounds as stated in the reasoning of the judgment below, on the grounds that it is reasonable to view that the subject of attribution of KRW 400 million, which was received from Nonindicted 3 on November 17, 201, was a non-indicted 2, and that he provided KRW 100 million among them to the defendant as “

3. According to the reasoning of the judgment of the first instance court and the lower court as well as the evidence duly admitted and the records of this case, the following facts can be revealed.

A. As to the instant land on March 16, 1954, Non-Indicted 5 ( Address 2 omitted) (hereinafter “Non-Indicted 5”), the registration of transfer was made due to restitution made on February 10, 1947 for sale and purchase on February 10, 194. However, the size recorded in the register is much smaller than 50,480 square meters, which is the size in the book of registration.

B. On November 16, 2011, Non-Indicted 2 prepared a sales contract with Non-Indicted 2, who was represented by Non-Indicted 6’s heir on behalf of Non-Indicted 5 on behalf of Non-Indicted 6 (Non-Indicted 6’s son), to purchase the instant land in KRW 500 million, and to correct the area recorded in the registry on the instant land as the area in the forestry book, Non-Indicted 60 million additionally to pay the purchase price to Non-Indicted 6, and to bear all the expenses necessary for the registration of inheritance and correction.

C. On November 17, 201, in collusion with the Defendant to borrow money from Nonindicted 3, Nonindicted 2, in collusion, showed a false sales contract stating the purchase price of the instant land in KRW 2.25 billion from the multilateral side located in the Seoul Northern District Court (Seoul Northern District Court) on November 17, 201, and borrowed from Nonindicted 3 the sum of KRW 100 million in the name of the sales contract amount and KRW 300 million in the name of the sales contract amount. In other words, Nonindicted 3 had Nonindicted 3 pay KRW 100 million in the name of the inheritance registration expenses, etc., and 300 million in the name of the sales contract amount to Nonindicted 7, thereby deceiving it.

After that, in collusion with the Defendant, Nonindicted 2, on November 22, 201, borrowed additional KRW 200 million from Nonindicted 3 as the purchase price, and let Nonindicted 3 deposit KRW 200 million in the seller’s account. ② In addition, Nonindicted 3 deceivings Nonindicted 3 to lend money to a public official so that the registration of revision to the instant land can be made, thereby deceiving him/her on November 18, 201; KRW 40 million on November 19, 201; KRW 30 million on December 22, 201; KRW 80 million on December 30, 201; KRW 130 million on January 13, 201; and KRW 1 million on January 13, 201; and KRW 5 million on January 25, 2012.

D. Accordingly, the Defendant conspired to borrow money from Nonindicted 3 on December 4, 2014 in the Seoul High Court 2014No1672 (hereinafter “related case”), and the Defendant made a false statement that he would complete the registration of correction and the registration of inheritance and to repay the money after completing the registration of transfer in the name of Nonindicted 2 even though he did not intend to use the money as expenses for the inheritance registration of the land in the instant case, and the Defendant was sentenced to three years and six months of imprisonment with prison labor for a criminal offense, such as the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud) that acquired a total sum of KRW 850 million from Nonindicted 3 + KRW 100 million + a public official + KRW 250 million. On April 23, 2015, the Defendant’s appeal became final and conclusive.

4. Examining these facts in light of the legal principles as seen earlier, we cannot agree with the lower court’s judgment that found the Defendant guilty of the facts charged of this case, contrary to the reasoning of the first instance court that there is no proof of crime.

A. On November 17, 2011, the facts charged of the instant case received money from Nonindicted 2 under the pretext of solicitation from the registry officials so that the Defendant may make a registration of correction to correct the area recorded in the registry as the area of the forest book. This premise is that Nonindicted 2 would promote the registration of correction on the instant land through the Defendant.

However, the facts constituting the crime of the relevant case are as follows: “A false statement stating that Nonindicted 2 and the Defendant received money from Nonindicted 3 on November 17, 201 because they had no intent to use the money borrowed from Nonindicted 3 as the expense for inheritance registration of the instant land, etc., but they would make a registration of revision and registration of inheritance in the name of Nonindicted 2.” As such, Nonindicted 2 and the Defendant did not intend to make a registration of correction as above, and the Defendant’s delivery of money to the Defendant on November 17, 201 is Nonindicted 3, it is in

B. In addition, as direct evidence that the purpose of the money received by the Defendant on November 17, 201, corresponds to the instant facts charged that the purpose of the money is “to make a request for registration of change in the area of land to the registry official,” Nonindicted 2 and Nonindicted 4’s partial statements are virtually true, the statement alone must be admissible as evidence in order to recognize the instant facts charged, and there should be credibility to exclude a reasonable doubt.

(1) However, at the prosecution of the relevant case, Nonindicted 2: (a) provided Nonindicted 2 with information on the instant land to Nonindicted 2; (b) stated that the Defendant was in need of KRW 500 million; (c) KRW 100 million; and (d) KRW 200 million as a public official; and (e) borrowed KRW 40 million from Nonindicted 3 on November 17, 201, Nonindicted 2 demanded Nonindicted 3 to pay KRW 300 million as the registration fee to Nonindicted 7; and (e) KRW 100 million as the registration fee to the Defendant; and (e) stated that Nonindicted 10 million as the registration fee to Nonindicted 13 billion as the registration fee to Nonindicted 2; and (e) made a statement to the Defendant to the effect that Nonindicted 13 billion as the statutory amount of money borrowed from Nonindicted 3 on or after November 18, 2011; and (e) made a statement to the effect that the remaining amount was paid to Nonindicted 140 million as the registration fee to Nonindicted 2.

(2) In addition, the prosecutorial office in the case related to Nonindicted 4Do (A) received KRW 100 million from the Defendant and delivered it to Nonindicted 1 as the registration fee for inheritance and correction of the instant land. (B) The prosecutorial office reversed the statement that received KRW 100 million from the Defendant and delivered it to Nonindicted 1 as a public official’s expense in the instant case.

(3) Rather, in the relevant case, the Defendant denied the above criminal facts against Nonindicted 3, while asserting that he received KRW 100 million from Nonindicted 2 on November 17, 2011, and paid KRW 250 million to Nonindicted 1 through Nonindicted 4 to the public officials so that the registration for revision of the instant land can be made. However, the first instance court and the appellate court of the relevant case directly received KRW 100 million from Nonindicted 3 for the expenses for inheritance registration of the instant land. The Defendant and Nonindicted 4’s statements alone are likely to believe that the above Defendant delivered KRW 100 million to Nonindicted 1. In addition to the purchase price of the instant land and KRW 100 million for registration expenses, the Defendant and Nonindicted 2 received additional payment from Nonindicted 3 for personal use of KRW 250 million as a public official, and determined that the Defendant rejected the Defendant’s assertion that he had acquired KRW 300 million as well as KRW 100 million as his criminal facts and the instant land.

(4) As above, the part directly corresponding to the facts charged in the instant case to the purport that KRW 100 million received by the Defendant among the statements made by Nonindicted 2 and Nonindicted 4 is a money in the name of “an solicitation for the registration of revision of the land size to a registered public official” (hereinafter “the statement in compliance with Nonindicted 2 and Nonindicted 4”) is not only inconsistent with the statements made by Nonindicted 2 and Nonindicted 4 and Nonindicted 2, in the court of first instance of the instant case, but also considered the circumstances in which the conviction was final and conclusive because they were not accepted in the relevant case, it is difficult to conclude that the Defendant, without any reasonable doubt, received KRW 10 million from Nonindicted 2 and Nonindicted 4 under the name of “an solicitation for the registration of revision of the land size to a registered public official” on November 17, 2011.

C. The first instance judgment, reflecting the above circumstances, determined that the evidence submitted by the prosecutor, including Nonindicted 4’s statement, is insufficient to recognize the facts charged, and that there was no proof of crime.

Ultimately, in order for the court below to recognize the facts charged in this case by misunderstanding of facts as to the above judgment of the court of first instance, it must be found that there is evidence to the extent that the court of first instance can sufficiently resolve the reasonable doubt caused by the first instance based on the result of the examination of evidence and the result of the additional examination of evidence by the court below. However, considering the circumstances cited by the court below as the reasons, the court below cannot be deemed to have deliberated and determined whether the evidence was sufficient to sufficiently resolve the aforementioned reasonable doubt raised by the court of first instance with respect to the statements consistent with Non-Indicted 2 and Non-Indicted 4, and the court below cannot be deemed to have deliberated and determined whether the above reasonable doubt raised by the court of first instance was sufficient

5. Therefore, the judgment of the court below is erroneous in the misapprehension of legal principles as to the degree of proof necessary for the recognition of guilt and the review and judgment of the appellate court as an ex post facto judgment, thereby failing to exhaust all necessary deliberations, which affected the conclusion of the judgment. The ground of appeal assigning

6. Therefore, without examining the remaining grounds of appeal, we reverse the judgment of the court below, and remand the case to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Ki-taik (Presiding Justice)