[1] Admissibility of evidence of the suspect interrogation protocol prepared by the prosecutor who has considerable reasons to suspect the voluntariness of confession (negative) and the burden of proof of the voluntariness (=public prosecutor

[2] Whether a bribe is a bribe where a public official receives money or goods related to his/her official duties in the form of a private will (affirmative)

[3] The scope of duties in the crime of bribery

[4] The number of crimes against acceptance of bribe by multiple times by a single and continuous criminal intent (=general crime)

[5] In a case where a cashier's checks were consumed as a bribe and then returned the amount equivalent to the face value thereof, whether additional collection is made (affirmative)

[1] If there is a considerable reason to suspect that a confession made by the prosecution without a locking the confession made by the defendant at the same time with verbal abuse, coercion, or limited liability does not have been made arbitrarily, the suspect examination protocol under Article 309 of the Criminal Procedure Act has no admissibility of evidence, and the purport of denying the admissibility of evidence of a confession made under the condition that there is a risk of inducing or coercing a false statement is not consistent with the substantive truth, and the confession itself does not fit the substantial truth, and is likely to cause an illegal or unjust pressure infringing on the fundamental human rights of the suspect in order to obtain a confession, regardless of the authenticity of the confession. Thus, if there is a dispute over the voluntariness, it is necessary to prove a reasonable and detailed fact to suspect the voluntariness, not the defendant's proof, but the prosecutor to resolve the question of voluntariness.

[2] If a public official received money or valuables in relation to his official duties, the money or valuables received shall be a bribe, and even if it is used in the form of a private teaching case, it shall be a bribe if it has the meaning of the price for the official duties.

[3] The term "duty in the crime of bribery" includes not only the duty under the control of the law, but also the act closely related to the duty, or the act under the custom or the actual jurisdiction, and the act under the control of the person who can assist or affect the person who has the decision making authority.

[4] It is reasonable to punish a bribe as a single and continuous crime, even if there are several types of acts by accepting it over several occasions, if it is performed by a single and continuous criminal intent and infringes on the same legal interest.

[5] Even if the consignee accepted and consumed a cashier's check as a bribe and returned the amount of the cashier's check to the receiver, it cannot be confiscated because the bribe itself was not returned to the receiver, and the equivalent amount should be collected from the consignee.

[1] Article 309 of the Criminal Procedure Act / [2] Article 129(1) of the Criminal Act / [3] Article 129(1) of the Criminal Act / [4] Article 129(1) of the Criminal Act / [5] Articles 48(2), 129(1), and 134 of the Criminal Act

[1] Supreme Court Decision 95Do1964 delivered on June 27, 1997 (Gong1997Ha, 221), Supreme Court Decision 97Do3234 delivered on April 10, 1998 (Gong1998Sang, 1400) / [3] Supreme Court Decision 96Do865 delivered on June 14, 1996 (Gong1996Ha, 2286) / [2] Supreme Court Decision 83Do1499 delivered on April 10, 198 (Gong1984, 860) / [3] Supreme Court Decision 95Do1114 delivered on November 15, 196 (Gong197, 1997) 98Do14979 delivered on April 16, 197

Defendant 1 and one other

Defendants

Attorney Oralg and 4 others

Seoul High Court Decision 98No1696 delivered on October 1, 1998

All appeals by the Defendants are dismissed. Each one hundred and twenty days of detention days after the appeal shall be included in each original sentence against the Defendants.

1. The defendant 1, 2 and the defendant 2's defense counsel's grounds of appeal are examined as to whether the defendant's interrogation protocol, etc. against the defendants is voluntary or not.

If there is a considerable reason to suspect that the confession made by the defendant at the prosecutor's office without locked verbal abuse, coercion, or limited liability does not have been made voluntarily, the suspect examination protocol is inadmissible pursuant to Article 309 of the Criminal Procedure Act (see, e.g., Supreme Court Decisions 95Do1964, Jun. 27, 1997; 97Do3234, Apr. 10, 198); and a confession made under a dangerous condition that the intent of denying the admissibility of a false confession without voluntariness does not fit the substantive truth, and thus, it is to prevent in advance any illegal or unjust pressure that infringes on the fundamental human rights of the suspect in order to obtain a confession, regardless of the authenticity of the confession. Thus, if there is a dispute over voluntariness, it is reasonable and detailed to suspect voluntariness, and the prosecutor's proof of voluntariness should not be proven, but it should be resolved (see, e.g., Supreme Court Decision 239Do4734).

기록에 의하면, 먼저 피고인 2은 1998. 2. 11. 14:30경 검찰에 자진 출석하여 비리혐의에 대하여 진술서를 작성하고, 이어 다음 날까지 계속된 조사 끝에 제1회 피의자신문조서를 작성하게 되었으며, 그 조사과정에서 위 피고인은 검사 등이 잠시 쉬는 사이에 같은 해 2. 12. 05:00경부터 1시간 정도 의자에서 잠을 잔 다음 계속 수사를 받았고, 같은 날 09:00경 긴급체포된 다음 같은 날 24:00경 서초경찰서에 유치되었다가 같은 해 2. 13. 10:00경 영장실질심사를 받고, 그 날 구속영장이 발부되고, 같은 날 17:00경 구속영장이 집행되어 20:00경 서울구치소에 수감된 사실, 위 피고인은 처음 진술서 작성시에는 금 5,000만 원 뇌물요구 부분에 관하여는 아무런 언급이 없었는데, 검사 작성의 피고인에 대한 제1회 피의자신문조서에는 공소외 진학종에게 이를 빌려달라고 하였으나 거절당하였고, 공소외 2측으로부터 뇌물받은 혐의에 대하여는 이를 부인하는 진술을 하였고, 피고인이 서울구치소에 수감된 다음 날인 같은 해 2. 14. 제3회 피의자신문조서에서는 공소외 2으로부터 1995. 가을경 받았다는 금 500만 원, 1997. 12. 24. 받았다는 금 600만 원 부분을 포함하여 합계 금 2,100만 원을 받았다고 진술하고 있으며, 공소외 2의 아버지인 공소외 3으로부터도 금 3,000만 원을 뇌물로 받았음을 자백하고 있고, 제1심 법정에서부터는 위 각 금 500만 원, 600만 원, 3,000만 원 금원 수령 부분 및 금 5,000만 원 뇌물요구 부분에 관하여는 이를 부인하고 있는 사실, 피고인 1은 학술세미나 참석차 1998. 2. 8. 독일로 출국하였다가 이 사건 뇌물비리 사건에 관한 연락을 받고, 독일에서 같은 달 11. 17:00경 비행기를 타고 독일을 출발하여 그 다음날 김포공항에 도착하고 피고인의 연락으로 대기하고 있던 수사관들에게 임의동행되어 그 날 14:00경 검찰청사에 도착한 뒤 자수서를 제출하고, 이어 진술서를 작성하고, 제1회 피의자신문조서를 작성한 다음, 같은 달 13. 11:00경 긴급체포되고, 그 다음날 10:00경 영장실질심사를 거쳐 구속영장이 발부되고, 그 날 23:00경 구속영장이 집행되어 서울구치소에 수감된 사실, 피고인은 1998. 2. 12. 제1회 피의자신문조서 작성시 진학종 등으로부터 받은 병풍 등은 직무와 관련 없이 선물로 받은 것이고, 진학종이 1997. 9. 29. 놓고 간 금 5,000만 원을 그 해 10. 16. 진학종의 자인 공소외 4에게 돌려주기 전에 공소외 4이 그 해 10. 10.경 위 피고인의 집을 방문한 사실에 대하여는 기억이 없다거나 대화 중 반환하는 것을 잊었다 또는 기억이 없으나 이에 관한 공소외 4의 말을 믿고 싶다는 등으로 진술하였고, 1998. 2. 13. 제2회 피의자신문조서 작성 당시에는 그 날 피고인의 집을 수색하면서 나온 미화 49,000불을 공소외 3으로부터 받은 사실을 부인하고, 해외 여행시 사용하고 남은 외화를 모아 놓은 것이라고 하다가, 같은 달 14. 제3회 피의자신문조서 작성 당시에는 공소외 3으로부터 미화 50,000불과 각 미화 10,000불씩 2회에 걸쳐 수령한 사실을 자백하고, 같은 날 제4회 피의자신문조서 작성 당시에는 진학종으로부터 받은 금 5,000만 원은 나중에 상황 보아가며 판단하여 보자고 하여 보관하고 있었고, 공소외 4이 1997. 10. 10.경 피고인의 집을 방문하였을 때 이를 돌려주었어야 하였다고 진술하면서 병풍 등도 교수채용과 관련하여 받았다는 취지로 진술하고 있으며, 제1심 법정에서부터는 위 금 5,000만 원은 처음부터 반환할 의사로 보관하고 있었고, 공소외 4은 같은 달 10. 위 피고인의 집을 방문한 적이 없으며, 피고인이 여러 차례에 걸친 연락 끝에 겨우 같은 달 14.경 공소외 4에게 연락이 되어 같은 달 16. 위 금원을 공소외 4에게 반환하게 된 것이라고 진술하고 있는 사실 등을 알 수 있고, 한편 피고인 2은 검사 작성의 피고인에 대한 각 피의자신문조서는 검찰에서 30여 시간 이상 잠을 재우지 않고 꿇어 앉히고, 뺨을 때리고, 볼펜으로 옆구리를 찌르는 등 폭언과 폭행을 하면서 외부와 연락을 하지 못하게 한 채 계속하여 신문을 하여 피고인이 심신이 지칠대로 지쳐 자포자기의 상태에서 허위로 진술하였던 것이고, 피고인 1은 검사 작성의 피고인에 대한 각 피의자신문조서에 대하여, 독일에서 12시간 이상 비행기를 타고 온 피고인을 검찰에서 48시간 이상 잠을 재우지 않고 욕설과 폭언을 하면서 밤샘조사를 하고, 그 과정에서 피고인이 코피를 흘리는 등 체력이 극도로 소진되어 의식조차 혼미한 상태에서 일부 수사관의 강압에 의하여 억지로 진술하였던 것이므로 임의성이 없다고 주장하고 있다.

In light of the above circumstances and the fact that there is a right to refuse to make statements to the Defendants, even if the Defendants were to voluntarily attend the prosecutor's office and were investigated, they continued to stay in the prosecutor's office until they were detained in the Seocho Police Station or executed a detention warrant, so there is a strong doubt that they could have been subject to the night investigation. Thus, if the Defendants' confessions in the prosecutor's office were to continue to appear verbal abuse and coercion without their allegations, there is considerable reason to suspect that the confessions in the prosecutor's office did not have been made arbitrarily, and in such a case, even if the Defendants were to voluntarily attend the prosecutor's office and undergo an investigation, it is necessary to prove that they would have been placed in the prosecutor's office while staying in the prosecutor's office and undergo an investigation, and therefore, it is not possible to use them as evidence for conviction without examining and judging whether each statement made by the Defendants at the prosecutor's office is problematic or because of verbal abuse and coercion, etc.

However, according to the reasoning of the first instance judgment maintained by the court below, in addition to the evidence of conviction against the defendants, the witness's statement of Nonindicted 1, 2, 3, and 4, each statement of the prosecutor's statement as to Nonindicted 1, 2, 3, and 4, each statement of the prosecutor's investigation record as to Nonindicted 1, 2, 3, and 4, each statement of seizure protocol as to the prosecutor's or prosecutor's investigation record, each copy of each deposit passbook bound in the investigation record, each copy of the academic conference book, and each copy of the academic conference book. Examining the remaining evidence in light of the records, each crime committed against the defendants can be deemed as proved by the remaining evidence, and the above error of the court below is not affected by the conclusion of the judgment. The ground of appeal on this point is

2. We examine the remainder of the grounds of appeal by Defendant 1, the defense counsel, and the final appellate brief of Defendant 1 and his defense counsel, as well as the supplement of the supplemental appellate brief of Defendant 1 and his defense counsel.

A. As to the giving and receiving of disease, wave, money

If a public official receives money or valuables in relation to his duties, the money or valuables received shall be a bribe, and even if it is used in the form of a private will, it shall be a bribe if it has the meaning of consideration for a job act (see, e.g., Supreme Court Decisions 96Do865, Jun. 14, 1996; 83Do1499, Apr. 10, 1984).

According to the facts and records established by the court below, on February 3, 1997, the professor Kim Jong-sik retired from retirement age, and around that time, all of the persons interested in the recruitment of professors was known to be newly employed during the second half of the year of the same year. Jin Jong-Un was a lineal ascendant and descendant of Defendant 1, his father, but his contact with Defendant 1 was not frequent until 1996, and there was no gift of high-priced goods. The above defendant and the above defendant returned on April 3, 1997, and again received high-priced money again after high-priced sick, etc., and the above defendant and the non-indicted 1, 4, the social status of professors and non-indicted 1, 4, and the above articles were revealed to be newly employed during the second half of the same year, and even if they were given and received high-priced goods, they cannot be viewed to fall under the mere solicitation and acceptance of high-priced goods in light of the above facts and circumstances.

The judgment of the court below to the same purport is justified, and there is no error of law in the misapprehension of legal principles as to the payment of bribe, business relationship, as alleged in the ground of appeal.

B. As to the received portion of gold KRW 50 million

According to the facts established by the court below and the records, when a student of a college wants to go to Defendant 1 on September 29, 1997, she first rejected it and later returned it to Defendant 1, and he received it later. On October 10 of the same year, Non-Indicted 2 received US$50,000 from Non-Indicted 2 as expenses for overseas research activities. On the 10th of the same month, Non-Indicted 4 did not return it at the time of Non-Indicted 4's visit the Defendant's house to recommend the Defendant to appoint a professor, and after Non-Indicted 4 visited Non-Indicted 4 of the above Defendant's house on September 14, 1997, Non-Indicted 4 visited Non-Indicted 4 of the same month, he returned the above money to Non-Indicted 4.

If the facts are as above, although the defendant first refused to receive the above money from the class of entrance, it is deemed that the mind changed due to Nonindicted 4 and Nonindicted 2's father, who was the competitor, received US$50,000 from Nonindicted 3 while he did not return it even though he had the opportunity to return it, and thus, it is deemed that the defendant returned it after the above money, and thus, it does not affect the establishment of the crime of bribery.

The judgment of the court below to the same purport is justified, and there is no error in the misapprehension of legal principles as to mistake of facts or acceptance of bribe due to violation of the rules of evidence alleged in the grounds of appeal.

C. As to the portion received in the sum of 70,000 US dollars

The court below found that the defendant received 10,00 US dollars 10,00 from Non-Indicted 3 for the purpose of marriage promotion around May 20, 197, 99, 10 US dollars 10,00 for the purpose of overseas travel expenses from Non-Indicted 3 for the purpose of overseas travel travel expenses in September of the same year, and 50,00 US dollars 50,00 for the purpose of overseas research activities expenses in early October 197, 197. In light of the fact that it is too large that the defendant's family relation with the defendant's family relation, social status, property status, and the time when each of the above amounts are given and the amount is given as a social precedent, the above amount should be considered as a bribe received and delivered to the effect that he will help them in relation to the recruitment of professors, unlike the above name. In light of the records, the judgment of the court below is justified, and there is no violation of the law of misunderstanding of facts due to the violation of the rules of evidence or misunderstanding of bribery.

3. We examine the remainder of the grounds of appeal by Defendant 2 and his defense counsel as well as the supplemental appellate brief for consultation on the red net of the defense counsel.

A. As to the relation to duty in the bribery

“Duties in the crime of bribery” includes not only the duties under the jurisdiction of a public official themselves, but also the duties that are closely related to such duties, or those that may assist, or influence, the person who is in charge of the customs or actual jurisdiction (see, e.g., Supreme Court Decisions 96Do378, Apr. 17, 1997; 96Do5828, Feb. 27, 1998).

According to the reasoning of the judgment of the court below, the procedure of appointment of new professors at Seoul University is ① an examination of qualifications for applicants for new professors at the relevant university or college, ② an examination of research performance by three or more researchers at the university or college, and an examination of qualifications by presentation, etc., and the final determination of whether to recommend new professors at the university or college or college is made after deliberation by the personnel committee of the university or college composed of ten or more professors, and the result is to be reported to the president when deliberation by the personnel committee of the university or college. (C) The head of the university or the head of the university or the head of the university or the head of the university or the head of the university or the head of the university or the head of the university or the head of the university or the head of the university or the head of the university or the head of the university or the head of the university or the head of the university or the head of the university or the head of the university or the head of the university or the head of the university or the head of the university or the head of the university or the head of the university or the head of the university or the new opinion.

B. On the violation of the rules of evidence

According to the reasoning of the judgment below, the court below held that the above defendant lent 30 million won to the above defendant on September 24, 1997 as research expenses upon his request from the non-indicted 4 who was employed as a professor. The above defendant demanded that the above defendant rent 50 million won to the above police officer on October 19 of the same year since he was urgently employed. However, the defendant refused to enter the above school. The defendant's request on September 1997 that "if money is money needs to be borrowed, 30 million won will be lent to the defendant," and that the defendant would not be held to have borrowed 30 million won for the above money from the non-indicted 4's public interest loan, and that the defendant would not be held to have borrowed 30 million won for the above loan from the non-indicted 4's public interest loan, and in light of the fact that the defendant would not have been issued to the above defendant's social status as a professor, the court below's decision that the above defendant would not have changed the above 3's social status as a professor.

C. As to the number of crimes

Even if a bribe has been received over several occasions, if it is performed by a single and continuous criminal intent and infringes on the same legal interest, it is reasonable to punish it as an inclusive crime (see, e.g., Supreme Court Decisions 90Do1588, Sept. 25, 1990; 85Do1502, Sept. 24, 1985; 81Do1409, Oct. 26, 1982).

According to the reasoning of the first instance judgment maintained by the court below, it can be recognized that Defendant 2 received a bribe of KRW 21,00,000,000 in total on six occasions between B and December 24, 1997, from the non-indicted 2 who entered the doctorate course at the graduate school of the Seoul National University on March 195, who wished to be employed as a professor of the dental college of the Seoul National University, Dental University, Dental University, Dental School of the Republic of Korea, and Dental School of the Republic of Korea and offered a bribe to the effect that he would be able to obtain a doctorate and employ professors for the future. As such, it shall be deemed that Defendant 2 received a bribe of KRW 21,00,000 as a combined and continuous criminal intent for the same reason. Therefore, it shall be deemed a single and continuous criminal offense.

In the same purport, the court below affirmed the judgment of the court of first instance which held that Defendant 2’s acceptance of a bribe from Nonindicted 2 as an inclusive crime is justified, and there is no error in the misapprehension of legal principles as to the acceptance of the crime of bribery, as otherwise alleged in the grounds of appeal.

D. As to collection

Even if the consignee accepted a cashier's check as a bribe and consumed it, and returned the amount of the cashier's check to the receiver, it cannot be confiscated because the bribe itself was not returned to the receiver, and the equivalent amount should be collected from the consignee (see, e.g., Supreme Court Decisions 82Do2462, Apr. 12, 1983; 83Do2871, Feb. 14, 1984).

The court below found that Defendant 2 received 30 million won cashier's checks from the class of entrance and consumed all of them, and returned the amount of 30 million won to the class of entrance and the interest thereon, and then, in light of the aforementioned legal principles and records, Defendant 2 should additionally collect 30 million won from Defendant 2, and there is no error in the misapprehension of legal principles as to additional collection, contrary to the allegations in the grounds of appeal.

In addition, the Supreme Court's decision to the above purport cannot be said to require a change.

4. The grounds of appeal by Defendant 1 and the defense counsel’s final appellate brief (including the supplement of the supplemental appellate brief by the defense counsel Park Jong-man) and the grounds of appeal by Defendant 2, defense counsel, and the grounds of appeal by the defense counsel (including the supplement of the supplemental appellate brief by the defense counsel Red Round), are also examined as to whether self-denunciation is self-denunciation.

According to the reasoning of the judgment below, although the defendants were allowed to appear at the prosecutor's office on February 11, 1998 or February 12, 199, the court below rejected the facts of suspicion on the ground that the defendants first received 30 million won as a bribe from the entrance into the prosecutor's office, but they requested 50 million won as a bribe from the entrance into the prosecutor's office, but they did not demand a bribe, and they did not request a bribe from the entrance into the prosecutor's office. After denying the suspicion of receiving a bribe from the non-indicted 2 and the non-indicted 2 and the non-indicted 2 delivered a bribe, the court below rejected the fact of receiving money and valuables, but there was a time difference between the non-indicted 2 and the non-indicted 3 and the non-indicted 4's non-indicted 1's non-indicted 1's non-indicted 3's non-indicted 1's non-indicted 4's non-indicted 2's non-indicted 3's non-indicted 1's non-indicted 2's non-indicted 3's non-indicted 3's.

5. Therefore, all appeals by the Defendants are dismissed, and one hundred and twenty days of detention days after the appeal shall be included in each original sentence against the Defendants. It is so decided as per Disposition by the assent of all participating judges.

Justices Cho Cho-Un (Presiding Justice)