In light of the purport of the judgment of remanding a case where the defendant, on the ground that the shares received as a bribe are not seized and that the above shares are registered in the name of the defendant's spouse on the register of shareholders and thus, it is not reasonable to confiscate the difference in lieu of confiscation, the court held that the above share certificates constitute illegal property as stipulated in Articles 2 and 3 (1) of the Act on Special Cases concerning Forfeiture of Public Officials Crimes where the court, after remand, voluntarily received the share certificates from the defendant and seized them.

In light of the purport of the judgment of remanding a case where the defendant, on the ground that the shares received as a bribe are not seized and that the above shares are registered in the name of the defendant's spouse on the register of shareholders and thus, it is not reasonable to confiscate the difference in lieu of confiscation, the court held that the above share certificates constitute illegal property as stipulated in Articles 2 and 3 (1) of the Act on Special Cases Concerning Forfeiture of Public Officials Crimes where the court, after remand, voluntarily received the share certificates from the defendant and seized them.

Articles 2 and 3(1) of the Act on Special Cases concerning Confiscation of Crimes of Public Officials

Defendant

Defendant and one other

1.2 Doctrine et al.

Law Firm Barun, Attorneys Jung-soo et al.

Seoul Central District Court Decision 2004Gohap349, 993 (Consolidated) Decided March 14, 2005

Seoul High Court Decision 2005No628 delivered on July 15, 2005

Supreme Court Decision 2005Do5822 Delivered on October 28, 2005

The guilty portion of the judgment of the court below shall be reversed.

A defendant shall be punished by imprisonment for five years.

361 days of detention before pronouncement of the judgment below shall be included in the above sentence.

Seized (Name omitted of Company) One copy of stock certificates of 10,000 shares of a stock company and five copies of stock certificates of 1,000 shares shall be confiscated.

184,165,565 won shall be additionally collected from the defendant.

1. Scope of the trial;

The portion of not guilty prior to the remand is determined by the prosecutor's remaining appeal in the judgment of remand, on the ground that the prosecutor's grounds of appeal are groundless, and thus, the judgment of remand only the part concerning the conviction reversed and remanded in the judgment of remand is determined by the court of first instance.

2. Summary of grounds for appeal;

A. Defendant

(1) misunderstanding of facts or misapprehension of legal principles

In relation to the duties of the National Police Agency (name omitted), the court below recognized that the defendant received money and valuables of KRW 298 million in total from Nonindicted 1, 2165,565, and the money and valuables of KRW 215 million from Nonindicted 2, 2165,565, and the money and valuables of KRW 15 million from Nonindicted 3 as the crime of violation of the Act on the Aggravated Punishment, etc. of Specific Crimes, and recognized that the defendant was punished by the crime of violation of the Act on the Aggravated Punishment, etc. of Specific Crimes, there is an error of law by misunderstanding the facts, or by misunderstanding the

(2) Unreasonable sentencing

The sentence of the court below against the defendant (five years of imprisonment) is too unreasonable.

(b) Prosecutors;

The sentence of the court below against the defendant (five years of imprisonment) is too unhued and unfair.

3. Summary of the judgment before remand

As to the Defendant’s assertion of misunderstanding of facts or misapprehension of legal principles, the court below rejected all the Defendant’s assertion of misunderstanding of facts or misapprehension of legal principles on the ground that “In light of the duty and status of the Defendant, Nonindicted 1, 2, and 3’s occupation and business contents, the circumstances and relation with the Defendant and Nonindicted 1, 2, and 3’s act, and the amount and quantity of the Defendant’s money, valuables, or property benefits received from Nonindicted 1, 2, and 3, it is reasonable to deem that the Defendant was a bribe received from the Defendant in connection with the Defendant’s duty, and that the lower court’s measures against the Defendant as a crime of violating the Act on the Aggravated Punishment, etc. of Specific Crimes (Bribery) are justifiable.”

However, as an ex officio determination, the court below found the following facts: (a) around March 2001, the defendant acquired 10,00 shares under the name of the non-indicted 4 and the non-indicted 5 in the name of the company (the company name omitted); (b) around June of the same year, the non-indicted 6 had 15,00 shares; (c) the defendant's wife stated 15,00 shares in the securities company; (d) around December 2002, the name on the list of shareholders of 10,000 among the above shares in the non-indicted 4; and (e) around December 5, 2003, the name on the list of shareholders of the non-indicted 5,000 shares was changed to non-indicted 6; and (e) the non-indicted 6,000 shares acquired shares under the non-indicted 4's name (the company name omitted); and (e) the court below ordered the defendant to confiscate the shares in its name without disposing of 15,0,000,0000 million shares.

4. Summary of the judgment remanded;

The Supreme Court Decision 2005Do5822, which is the case remanded, rejected all the arguments of the defendant and the prosecutor that the trial prior to the remanded case misjudgments the facts contrary to the rules of evidence, or misleads the legal principles as to the duty relationship of bribery, and further rejected all the arguments of the defendant and the prosecutor. Further, the defendant's assertion that the court erred by misapprehending Article 15 of the Extradition Treaty between the Government of the Republic of Korea and the

However, as to the prosecutor's assertion on the above part of the judgment before remanding the case, the additional collection is a disposition ordering the payment of the value of the property in lieu of the confiscation when the whole or part of the property to be confiscated is not possible. In substance, there is no difference between the confiscation and the confiscation. Article 134 of the Criminal Act and Article 134 of the Act on Special Cases concerning Forfeiture of Public Officials' Crimes prevents a public official from continuously holding unjust profits acquired through a duty-related crime such as bribery. Thus, even if the court below changed the additional collection to confiscation under the view of the first instance court as to the possibility of confiscation, it cannot be deemed that there is a substantial change in the interest of the defendant. Accordingly, it should not be deemed that the additional collection has been made disadvantageously changed, and since the court below rejected the above part of the judgment of the court below as well as the above part of the judgment of the court below that did not affect the public official's right to the property subject to confiscation or any other reason, it may be additionally collected in lieu of the above part of the judgment of the court below.

5. The judgment of this Court

A. Judgment on the grounds of appeal concerning mistake of facts or misapprehension of legal principles by the defendant

In the above Supreme Court decision which is remanded, the part rejected on the ground that the appeal by the defendant is groundless shall no longer be asserted because the final judgment becomes final and conclusive at the same time with the above Supreme Court decision, so it cannot be determined against the judgment that is remanded (see Supreme Court Decision 2002Do3062, Feb. 28, 2003). In addition, even if examining the records of this case, the grounds for appeal on mistake of facts and misapprehension of legal principles of the defendant are deemed justifiable before the remand, and such decision shall be made mainly on the part of ex officio decision on confiscation and additional collection which judged that the remanded judgment is well-grounded.

B. Ex officio determination

According to the evidence duly examined and adopted by the court below and the court below prior to and after remanding, the defendant did not dispose of 15,00 shares of the (company name omitted) personal stock company 10,000 in the form of six share certificates in the name of the defendant's wife, as stated in [Attachment 2] 1 and 3 at the time of original judgment, and did not dispose of 15,000 shares of the (company name omitted) personal stock company 1,000 and kept in the form of six share certificates in the name of the defendant's wife, and the above share certificates six copies of the share certificates are kept in the Korea Securities Depository through the securities company and delivered them to the defendant, and then the above court voluntarily received six share certificates from the defendant and seized them. Thus, if the facts are as above, it shall be deemed that the above share certificates 6 are illegal under Articles 2 and 3 (1) of the Act on the Special Cases concerning the Confiscation of

On the other hand, in the original trial, the part of the judgment of the court below's conviction cannot be maintained any more without examining the grounds for appeal on the unfair sentencing of the prosecutor, on the ground that the criminal name was changed from "violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (Bribery)" to "Bribery", "Article 2 (1) 2 of the Act on the Aggravated Punishment, etc. of Specific Crimes and Article 129 (1) of the Criminal Act" to "Article 129 (1) of the Criminal Act" and "Article 129 (1) of the Criminal Act".

6. Conclusion

Therefore, according to Article 364(2) of the Criminal Procedure Act, the guilty part of the judgment of the court below shall be reversed and it shall be decided as follows through pleadings.

The relevant column of the judgment of the court below is as follows.

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

Article 2(1)1 of the Act on the Aggravated Punishment, etc. of Specific Crimes and Article 129(1) of the Criminal Act, comprehensively, the acceptance of bribe under Article 1 of the ruling

Nos. 2 and 3 of the ruling: Each combination of the acceptance of bribe, Article 129(1) of the Criminal Code

1. Aggravation of concurrent crimes;

Article 37 (former part of Article 37, Article 38 (1) 2, and Article 50 of the Criminal Act [Aggravation of concurrent crimes with punishment prescribed for a violation of the Act on the Aggravated Punishment, etc. of Specific Crimes]

1. Discretionary mitigation;

Articles 53 and 55(1)3 of the Criminal Act

1. Calculation of days of detention;

Article 57 of the Criminal Act

1. Confiscation;

Article 3 (1) of the Act on Special Cases concerning Confiscation of Crimes of Public Officials

1. Additional collection:

Article 6 of the Act on Special Cases concerning Confiscation of Public Officials Offenses [184,165,565 won = 8 million won + 70 million won + 20 million won + 50 million won (profit equivalent to the price of shares 5,000 + 21,165,565 won + 15 million won];

Judges Lee Jae-hwan (Presiding Judge) Kim Jong-ho