[1] The meaning and requirements of the number of persons under Article 52 (1) of the Criminal Code, and distinction from confession

[2] The case holding that if a self-denunciation was held in possession of a self-denunciation and voluntarily present at an investigation agency, but the fact of crime was denied without submitting a self-denunciation, it cannot be recognized that the self-denunciation was not established and the fact of crime was submitted after the detention and the self-denunciation was not recognized

[1] Article 52 (1) of the Criminal Act / [2] Article 52 (1) of the Criminal Act

[1] Supreme Court Decision 92Do962 delivered on August 14, 1992 (Gong1992, 2708), Supreme Court Decision 93Do1054 delivered on June 11, 1993 (Gong1993Ha, 2067), Supreme Court Decision 94Do2130 delivered on October 14, 1994 (Gong1994Ha, 3039), Supreme Court en banc Decision 96Do1167 delivered on March 20, 197 (Gong197Sang, 1039), Supreme Court Decision 9Do1695 delivered on July 9, 199 (Gong199, 1685), Supreme Court Decision 200Do20364 delivered on September 23, 2005 (Gong1999Ha, 2685)

Defendant 1 and one other

Defendant 1 and Prosecutor (Defendant 2)

Attorney Lee Yong-soo et al.

Seoul High Court Decision 2002No2110 delivered on May 16, 2003

The judgment below is reversed and the case is remanded to Seoul High Court.

1. As to the prosecutor's ground of appeal

A. The judgment of the court below

원심은, 검찰은 2001. 12. 20.경까지 공소외 1 등으로부터 피고인 2에게 판시 금원을 공여하였다는 진술을 받는 등 관련 자료를 확보한 뒤 2001. 12. 24. 피고인에게 같은 달 26. 출석하라는 요구를 한 사실, 피고인 2는 같은 달 29일 출석 당시 자수서(작성일이 2001. 12. 29.임)를 소지하고 있었으나 소속 정당의 총재 비서실장이 피고인 2와 상의도 없이 일방적으로 ' 피고인 2에게 확인한 결과 피고인 2가 정치자금으로 금품을 수수하였다가 곧바로 반환하였다고 한다.'고 언론에 공표하자 피고인 2가 자수서에 기술한 대로 진술하기가 어려운 상황이 되어 버린 사실, 이에 제1회 피의자신문을 받으면서 언론에 공표된 바대로 1999. 10. 중순 일자불상경의 뇌물수수의 점에 대하여는 ' 공소외 2가 감귤상자 같은 것을 들고 와서 현관문 안쪽에 놓고 가는 것을 보았으나 출근시간이라 워낙 바쁜 시간이라 감귤상자를 확인도 하지 않고 황급히 출근하였으나 저녁에 퇴근하여 상자를 보니 감귤상자가 아니라고 생각하여 늦은 밤에 공소외 2를 불러 그 감귤상자 같은 것을 가지고 가도록 하였다.'(수사기록 248-250면)고 하고, 1999. 11. 하순 일자불상경의 뇌물수수의 점에 대하여는 '당일 아침에는 출근 준비로 바빠 공소외 1과 공소외 2가 감귤상자 같은 것을 가지고 온 것을 보지 못하였는데, 당일 저녁에 퇴근하여 집에 가보니 감귤상자 같은 것이 있기에 깜짝 놀라 집사람에게 "이게 무슨 상자냐?"고 하자 집사람의 말이 아침에 방문한 사람들이 가지고 온 것 같다고 하기에 곧바로 공소외 2에게 전화하여 저희 집으로 오라고 한 후 호통을 쳐서 돌려보냈다.'(수사기록 253면)고 진술하여 혐의사실을 부인하다가 같은 날 23:00경 긴급체포된 사실, 같은 달 30. 제2회 피의자신문 당시에는 1999. 10. 초순 일자불상경의 뇌물수수의 점에 대하여 1,000만 원을 받은 사실이 없다고 혐의사실을 부인한 사실, 같은 달 31. 제3회 피의자신문시에도 혐의사실을 부인한 사실, 그러다가 2002. 1. 1. 구속이 되었고, 그 후 비로소 자수서를 제출하고 같은 달 3. 제4회 피의자신문시 혐의사실을 자백한 사실 등을 인정한 다음, 피고인 2가 검찰에 자진출두 당시 자수서를 작성하여 소지하고 있었으나 언론에 혐의사실을 부인하는 내용이 공표되자 마지 못해 혐의사실을 일부 부인하다가 그 후 수사기관에서 진술을 번복하고 혐의사실을 모두 시인한 경위 및 자수를 형법상 임의적 감경사유로 규정하고 있는 취지 등에 비추어 볼 때, 피고인 2가 검찰에 자진출석하여 자수서를 제출하고 제4회 피의자신문시 혐의사실을 자백한 것은 자발적으로 자신의 범죄사실을 수사기관에 신고하여 그 소추를 구하는 의사표시라고 볼 수 있어 자수에 해당한다고 판단하였다.

B. The judgment of this Court

The phrase “self-denunciation” under Article 52(1) of the Criminal Act is established when an offender voluntarily reports his/her criminal facts to an investigative agency and voluntarily expresses his/her intention to seek prosecution. It includes cases where the offender voluntarily appears in an investigative agency after the occurrence of a crime, and as long as the number of persons has been established, the effect of imprisonment becomes conclusive, and the number of persons once generated by denying the crime from the investigative agency or the court after the reversal of the crime, shall not be extinguished (see Supreme Court en banc Decision 96Do1167 delivered on March 20, 197, Supreme Court Decision 99Do1695 delivered on July 9, 199, Supreme Court Decision 2001Do410 delivered on May 15, 201, etc.). Since a report by an investigative agency is a voluntary declaration of intention, it shall not be established if the content of the report is obviously denied, and it shall not be established at the time of declaration of intention, 94Do194 delivered on September 19, 1994.

In light of the above legal principles, even if Defendant 2 voluntarily attended an investigative agency, and was in possession of a self-denunciation at the time, it cannot be recognized that the number of self-denunciation was established at that stage as long as he did not submit a self-denunciation report, and as long as the fact of crime was denied, it cannot be recognized that Defendant 2 submitted a self-denunciation report while being detained due to such criminal facts, and the fact of the crime committed at the time of interrogation of the fourth suspect cannot be recognized as constituting a self-denunciation.

Nevertheless, the court below decided that the above statement by Defendant 2 constitutes a self-denunciation as a ground for mitigation of self-denunciation, and there is an unlawful ground for misunderstanding the legal principles on self-denunciation, and the prosecutor's ground for appeal pointing this out is with merit.

2. As to Defendant 1’s ground of appeal

A. The judgment of the court below

Of the trial records of the court of first instance, Defendant 1 and Nonindicted Party 1, each statement made by the prosecutor's interrogation committee of the prosecution against Defendant 1 and Nonindicted Party 1, each statement made by the prosecutor's office of the first instance Incheon District Public Procurement Service, and the fact-finding results with respect to the head of the first instance Incheon District Public Procurement Service. Defendant 1 purchased and used on credit about about 30 billion won from the Public Procurement Service at the time of leaving the Seoul Metropolitan Government Public Procurement Service, but it is necessary to extend the period of redemption due to the need for Defendant 1's cooperation. However, Defendant 1 had appraisal of the main office of the Public Procurement Service from the time of the Public Procurement Service to the Public Procurement Service, which was not good for Seoul Gyeong metal, and thus, it was necessary to improve the relationship with Defendant 1. The Incheon District Public Procurement Service did not have the authority to extend the payment period of the sales proceeds of Alkum 1, the representative director of the Seoul Special Metropolitan Government Public Procurement Service, but did not have any influence on Defendant 1, the former head of the Seoul Public Procurement Service.

나아가 원심은, 피고인 1이 공소외 3으로부터 현금 1,000만 원이 든 쇼핑백을 전달받았는지 여부에 대하여, 공소외 3은 피고인 1을 방문하고 피고인 1의 사무실을 나오면서 그 쇼핑백을 소파 위에 놓고 나왔다고 일관되게 진술하고 있는 반면, 피고인 1은 제1회 검찰 피의자신문조서에서는 1998. 3. 27. 공소외 3이 피고인 1의 부임인사차 사무실에 찾아온 사실을 인정하면서도 1,000만 원이 든 쇼핑백을 전달받은 사실은 없다고 진술하다가, 제2회 검찰 피의자신문조서에서는 쇼핑백에 관한 진술을 번복하면서 공소외 3이 "저희 사장님 말씀이 청장님이 국방대학원 교육을 받으시느라고 몸이 많이 상했을 것이라고 하면서 보약을 전해드리라고 하여 가지고 왔으니 받아주십시오."라고 하기에 "나는 아직도 몸이 건강한 편이니 보약은 필요 없다. 성의는 고마우나 오히려 사업을 하시는 최사장님에게 보약이 더 필요할 것 같으니 다시 가지고 가라."고 하였고, 공소외 3이 사무실을 나갈 때까지 가지고 온 보약이나 쇼핑백을 본 사실이 없다가 공소외 3이 사무실을 나간 후 부속실 여직원이 찻잔을 치우기 위하여 들어와 "여기에 쇼핑백 같은 것이 무엇입니까."라고 하여 "조금 전에 왔던 손님 것이니 얼른 그 손님에게 전해주고 와라."고 하였다고 하면서 당시 쇼핑백은 긴 소파 위 가장자리 부분에 놓여 있었다고 하고, 여직원이 쇼핑백을 들고 나갔으나 공소외 3이 이미 가버려 전해주지 못하자 피고인 1이 여직원에게 "일단 수위실에 연락해보고 손님이 가버렸으면 업무과에 주어 그 손님에게 전해주도록 하라."고 하면서도 쇼핑백 안에 무슨 물건이 있는지 확인해본 바는 없고, 그 후 쇼핑백이 서울경금속측에 전해졌는지도 확인한 바 없다고 하여 이 사건 당일의 일을 구체적으로 진술하였으나, 제1심 법정에 이르러 그 진술을 다시 번복하여 공소외 3이 쇼핑백을 들고 온 것을 본 적이 없다고 하면서 검찰에서의 진술은 자신이 공상을 하였던 것이라고 진술하고 있는 점, 부속실 여직원인 김은미는 피고인 1이 공소외 3이 가져온 쇼핑백을 돌려주라고 한 것을 기억하지 못하고 있고, 피고인 1을 찾아오는 손님이 선물을 두고 가는 경우는 있으나 피고인 1이 선물을 돌려주라고 한 적이 있는지는 기억하지 못하겠다고 진술하고 있는 점, 공소외 3도 피고인 1에게 보약을 가져왔다는 말을 한 적이 없다고 진술하고 있는 점, 피고인 1은 인천지방조달청장으로 부임할 당시 서울경금속은 외상대금이 약 300억 원이 넘었고 외상대금을 제때에 납부하지 못하고 있는 상태였으며 피고인 1의 인천지방조달청장 부임 전후로 공소외 1이 자신에게 돈이 든 봉투를 전달하려 시도하였으나 피고인 1이 이를 거절하였다고 진술한 점 등에 비추어 볼 때, 피고인 1은 검찰에서 공소외 3의 진술과는 경위가 다르기는 하나 공소외 3이 사무실 소파 위에 쇼핑백을 놓고 갔다는 점에 대하여는 공소외 3의 진술과 일치하는 진술을 한 바 있고, 검찰에서 공소외 3이 쇼핑백을 들고 왔다고 진술한 것은 자신의 공상이었다는 피고인 1의 주장은 쉽게 납득이 가지 않아 피고인 1은 공소외 3이 사무실 소파 위에 놓고 간 쇼핑백에 대하여 기억하고 있는 것으로 보이고, 당시 서울경금속의 사정을 잘 아는 공소외 1으로서는 공소외 3이 가지고 온 쇼핑백에 돈이 들어 있을 개연성을 충분히 인식하였다고 보이므로 위 쇼핑백의 내용물을 확인하여 그 내용물에 따라 전달하는 경로를 달리하였어야 하는데도 그 내용물도 확인하지 않은 채 업무과를 통하여 전해주라고 한 후 그 전달 여부를 확인도 하지 않았다는 진술내용은 믿기 어렵고, 김은미의 진술에 의하면 손님이 가져온 선물을 돌려주는 경우는 이례적인 것임에도 김은미가 그러한 경우를 기억하지 못하는 것으로 보아 피고인 1은 공소외 3이 놓고 간 쇼핑백을 여직원을 통하여 돌려주지 않은 것으로 보여 결국 공소외 3의 진술대로 피고인 1이 1,000만 원이 든 쇼핑백을 전달받은 사실이 인정된다 할 것이며, 공소외 3의 진술 중 1,000만 원을 피고인 1에게 전달한 이유에 대하여 번복한 부분이 있다 하더라도 앞서 본 바와 같이 서울경금속으로서는 알루미늄 외상구입대금 납기연장과 관련하여 피고인 1의 협조가 필요하였던 점이 인정되는 이상 이러한 점만으로 공소외 3의 진술에 신빙성이 없다고 할 수 없고, 피고인 1이 주장하는 바와 같이 피고인 1이 서울경금속에 아무런 편의도 제공하지 않았고 직원들보다 엄격한 업무처리를 하였다 하더라도 이러한 사정만으로 위 인정을 뒤집기에 부족하다고 하여, 공소외 3, 공소외 1 등의 진술 등을 근거로 피고인 1에 대한 범죄사실을 유죄로 인정한 것은 정당하다고 판단하였다.

B. The judgment of this Court

First, it is difficult to believe that Non-Indicted 3’s statement is in the following respects:

First, Nonindicted 1 and Nonindicted 3 stated that the container, when Nonindicted 1 delivered KRW 10 million to Nonindicted 3, which received money, had been containing KRW 10 million in the shopping bags of modern department stores (such as investigation records, KRW 55 pages, KRW 72 pages, KRW 159, and KRW 328), but Nonindicted 1 stated to the effect that Nonindicted 1 prepared KRW 10 million with Nonindicted 1’s order and put them in the document bag (the trial record 3.60 pages), and that Nonindicted 1 stated to the effect that he did not prepare for shopping bags and delivered it as prepared in the accounting and accounting (the trial record 345 pages).

Second, with respect to the circumstances at the time of Nonindicted 3’s visit to Defendant 1, Nonindicted 3 was in written form, but Nonindicted 3 was not in contact with Defendant 1 because the nature of Defendant 1 was boomed to contact in advance, and Defendant 1 was believed to have been Defendant 1 during that time period (in the investigation record, 70 pages, 98 pages, and 176 pages, etc.), Defendant 1’s employees, who are the staff of the office of Defendant 1, entered the office of Defendant 3, had considerable significance for example, as Nonindicted 3 entered the office of the head, and had several persons to find the office of the head of the office of Nonparty 3, and the head of the office of Nonparty 3 was in contact with the head of the office of Nonparty 1. The statement was made to the effect that Nonindicted 3 had made a phone prior to Nonindicted 1’s visit (in the investigation record, 15 pages, 1530 pages, 530 pages).

As can be seen, in light of the fact that Kim U.S. stated the detailed contents of the circumstances in which Nonindicted 3 is memoryed with the fact that Nonindicted 3 was a telephone, and that Nonindicted 3 appears not to have any contact with Defendant 1 in advance, it is difficult to readily conclude that such statement is false, and therefore, it is impossible to believe this part of the statement made by Nonindicted 3, who is contrary thereto.

On the other hand, as there is no room at the time of Nonindicted 3’s visit to his office, he directly opened Defendant 1’s visit and entered Defendant 1, Defendant 1 visited Defendant 1 by leaving the office for the head of his own Kim, and Defendant 1 visited Defendant 1 by visiting the office for the head of his own (the investigation record Nos. 71, 98, and the trial record No. 178) (the trial record No. 179).

However, Kim U.S. stated that Nonindicted 3 visited Nonindicted 3 in advance and visited Nonindicted 3’s office, and that he gave guidance to Defendant 1 (the investigative record No. 157 pages and the trial record No. 350 pages). The time limit for visit was o’clock (the trial record No. 352 pages), and that Nonindicted 3 immediately entered the office of the head of the office, and that the statement is inconsistent with Nonindicted 3’s statement (the trial record No. 354 pages).

In light of the time when Nonindicted 3 visited Defendant 1 and the status of Defendant 1, etc., it is difficult to accept the statement that Nonindicted 3, an employee of Nonindicted 3’s room at the time of Nonindicted 3’s visit, Nonparty 3, was on the spot, as well as Nonindicted 3’s statement that Nonindicted 3 went to Defendant 1’s office without waiting for the employee’s guidance. Moreover, even if Nonindicted 3’s statement was made, it is difficult to believe that Nonindicted 3 was on the part of Nonindicted 3’s office when he visited Defendant 1, and that Nonindicted 3 was on the part of Nonindicted 3, after entering the office of Defendant 1, he was on the part of Nonindicted 3, and that Nonindicted 3 was on the part of Nonindicted 3’s office at the time of leaving the office of Defendant 5 minutes thereafter, it was difficult to view that Nonindicted 3 was on the part of Defendant 1’s last office at the time of Nonindicted 3’s entry, and that Nonindicted 3 was on the part of Defendant 1’s oral statement.

Third, with regard to the fact that Non-Indicted 3 used shopping bags and visited Defendant 1 and left Defendant 1's office, Non-Indicted 3 used shopping bags and stated that he was placed in Defendant 1's office until the first instance court, although some of the circumstances differ, Non-Indicted 3 used shopping bags in which Non-Indicted 1 received money from the investigative agency to the first instance court, and made it in Defendant 1's office, and there is no fact that Defendant 1 took place after the first instance court's statement at the prosecutor's office and the first instance court.

However, as alleged by Defendant 1, Kim U.S. stated that Nonindicted 3 did not have cited shopping bags at the time when Nonindicted 3 visited Defendant 1, as alleged by Defendant 1, and that it did not have been cited (the trial record 351 pages), and that Nonindicted 1 also stated in the investigative agency and the court that it would not know whether it would deliver KRW 10 million because it is an internal problem between Nonindicted 3 and Defendant 1. However, he heard the statement that Nonindicted 3 would not have consulted (the trial record 1064 pages) and that Nonindicted 3 would not have been aware of the fact that Defendant 1 would not have made a bribe (the trial record 1064 pages), and that Nonindicted 3 would have made a statement to the effect that he would not have received money from Defendant 1 (the trial record 118 pages, the trial record 339 pages, and the trial record 144).

In light of the fact that Nonindicted Party 1 directly delivered KRW 10 million to Nonindicted Party 3 as the delivery to Defendant 1, but it is a fact that Defendant 1 was non-cooperative in the process of performing his duties, and that Defendant 1 also made a favorable statement to Defendant 1, there are no circumstances to deem that Kim Jong-un had made a favorable statement. Unless there are special circumstances to deny the statements made by Nonindicted Party 1, it is difficult to recognize that Nonindicted Party 3 sent KRW 10 million to Defendant 1 in shopping bags.

On the other hand, we find it difficult to accept the court below's second examination that Defendant 1's statement to the effect that he acknowledged the fact that Nonindicted 3 brought shopping bags to the prosecution at the time of the second interrogation and ordered the return of the shopping bags, and that Defendant 1's statement about shopping bags was caused by his official duty.

However, in light of the above facts: (a) it is difficult to recognize that Nonindicted 3 had shopping bags at the time when he visited Defendant 1; (b) Defendant 1’s statement as to the existence of shopping bags was made in the previous investigation process, not before Nonindicted 3 et al.’s statement; and (c) Defendant 1’s statement as to the order to return, etc., other than the existence of shopping bags, appears to be all of the facts based on Kim Yong-U.S.’s statement, etc., although Defendant 1 continued to commit the crime, it can be deemed that Defendant 1’s statement as to the shopping bags could be deemed to have been false, even if considering the circumstances such as Defendant 1’s continued to deny the crime and made a statement as to shopping bags, it is questionable whether only the part on the existence of the shopping bags is removed and it can be deemed to be time to acknowledge the fact.

In particular, in light of the fact that Nonindicted 3’s statement about the delivery process of the bribe and the situation at the time of delivery is difficult to believe that Defendant 1 delivered KRW 10 million to Defendant 1, as seen earlier, it is difficult to recognize that Defendant 1 was the time of acceptance of shopping bags solely on the basis of Nonindicted 3’s statement and part of Defendant 1’s statement.

On July 29, 196, among the dates written in Defendant 1’s order submitted by the investigative agency, Nonindicted 3 claimed that Defendant 1 was the first day of delivery, and on March 27, 1998, Defendant 1 was the date of delivery of money (in investigation records, face 54, face 63, face 74, face 168 pages), but Nonindicted 4’s order that Nonindicted 3 provided money and valuables was made only when Nonindicted 4 first met, and Nonindicted 4 moved to the office of the Korea International Cooperation Agency on August 17, 1994 and 197. In light of the fact that Nonindicted 4 did not specify the date of delivery to Nonindicted 4 (in case of investigation records, face 63, face 169 pages), it is difficult to recognize that Nonindicted 3 did not receive money and valuables from the date written in Incheon 197 page, but it is also difficult to recognize that Nonindicted 3 was Defendant 1’s receipt of money and valuables.

On the other hand, even after Defendant 1 received money and valuables from Nonindicted 3 on October 1998, Defendant 1, at the time of obtaining approval with regard to the request for the collection reservation of the Seoul light metal (the trial record No. 581), entered more problems than friendly on the Seoul light metal (the trial record No. 581), and at the Incheon Regional Government Procurement Office, Defendant 1 was not allowed to extend the payment period of the Seoul light metal and approved its extension in accordance with the direction of the main office of the Public Procurement Service, and there is also a circumstance that Defendant 1 did not provide any convenience on the Seoul light metal and carried out more strict duties than its employees, even if he did not actively take measures favorable to the company when receiving money and valuables from the company, considering this example, it is difficult to deem that Defendant 1 received money and valuables from Defendant 3, in consideration of this example.

However, even though Defendant 1 applied for the extension of the payment period of 35 credit purchase price from April 4, 1998 to July 28, 1998, when Defendant 1 works as the head of the Incheon Regional Public Procurement Service, Defendant 1 applied for the extension of the payment period of 13 credit purchase price from 1998 to 35 credit purchase price, Defendant 1 appears to have obtained the approval from the Incheon Regional Public Procurement Service, the extension of the payment period at the time is deemed to have met the ordinary requirements when he received the performance guarantee bond extended by the period from the Korea Guarantee Insurance Co., Ltd. (the trial record 589 to 592, 603). Therefore, it is difficult to determine that Defendant 1 provided convenience in the performance of the affairs

Furthermore, in the event that Nonindicted Party 1 and Kim Jong-American believe such statements, etc., it is also likely that Nonindicted Party 3 would not actually deliver KRW 10 million received from Nonindicted Party 1 by having Nonindicted Party 1 deliver them to Defendant 1.

Nevertheless, the court below found Defendant 1 guilty of the criminal facts of this case on the grounds that Defendant 1 received KRW 10 million from Nonindicted 3 on the grounds of the credibility of Nonindicted 3’s statement and the meaning of Nonindicted 1 and Kim Yong-U’s statement that may be recognized that Nonindicted 3 did not deliver money and valuables, etc., without further determination, and on the grounds of Nonindicted 3’s statement that lack credibility and part of Defendant 1’s second interrogation of suspect suspect, etc. at the time of Defendant 1’s second interrogation, it erred in the misapprehension of the law of evidence, thereby affecting the conclusion of the judgment. The grounds of appeal pointing this out are justified by the court below.

3. Conclusion

Therefore, all judgment of the court below shall be reversed and the case shall be remanded to the court of original judgment for a new judgment after a further deliberation. It is so decided as per Disposition by the assent of all participating Justices.

Justices Lee Yong-woo (Presiding Justice)