[1] The meaning of a special relationship, which is a form of a legal holiday agreement

[2] Whether the provisions of Article 30 (2) 5 and Article 13 subparagraph 3 of the former Political Fund Act are special relationships with the provisions of Article 132 of the Criminal Act (negative)

[3] The relationship between the political fund and the bribe

[4] The person who bears the burden of proof of the facts charged in a criminal trial (=the prosecutor) and the degree of probative value of evidence for conviction

[5] The elements to acknowledge the conviction only by the statement of the person who has been selected as the person who has received the bribery where the fact of the bribery is denied at the time of the acceptance of the bribe and there is no evidence such as financial materials to support the fact

[1] Article 37 of the Criminal Act / [2] Article 13 subparagraph 3 and Article 30 (2) subparagraph 5 of the former Political Fund Act (amended by Act No. 7191 of March 12, 2004), Article 132 of the Criminal Act / [3] Article 129 (1) of the Criminal Act, Article 2 of the Act on the Aggravated Punishment, etc. of Specific Crimes / [4] Article 308 of the Criminal Procedure Act / [5] Articles 129 and 13 of the Criminal Act, Article 308 of the Criminal Procedure Act, Article 2 (1) of the Act on the Aggravated Punishment, etc. of Specific Crimes

［1］［2］ 대법원 2005. 2. 17. 선고 2004도6940 판결 (공2005상, 452) ［1］ 대법원 1993. 6. 22. 선고 93도498 판결 (공1993하, 2192) 대법원 1997. 6. 27. 선고 97도1085 판결 (공1997하, 2241) 대법원 2003. 4. 8. 선고 2002도6033 판결 (공2003상, 1127) ［3］ 대법원 1997. 4. 17. 선고 96도3377 전원합의체 판결 (공1997상, 1354) 대법원 1997. 4. 17. 선고 96도3378 판결 (공1997상, 1368) 대법원 1997. 12. 26. 선고 97도2609 판결 (공1998상, 475) ［4］ 대법원 2000. 2. 25. 선고 99도4305 판결 (공2000상, 896) 대법원 2003. 2. 11. 선고 2002도6110 판결 (공2003상, 856) 대법원 2006. 1. 26. 선고 2005도7989 판결 대법원 2006. 4. 27. 선고 2006도735 판결 ［5］ 대법원 2002. 6. 11. 선고 2000도5701 판결 (공2002하, 1720) 대법원 2005. 9. 29. 선고 2005도4411 판결

Defendant

Defendant and Prosecutor

Attorney Jeong Jong-soo

Seoul High Court Decision 2005No2073 Delivered on February 10, 2006

All of the prosecutor's appeals and defendant's appeals are dismissed.

1. As to the Defendant’s grounds of appeal (to the extent of supplement in the grounds of appeal submitted after the expiration of the period)

Article 30(2)5 and Article 13 subparag. 3 of the former Political Fund Act (amended by Act No. 7191 of Mar. 12, 2004; hereinafter “former Political Fund Act”) provide that “Special Relations” shall include all the elements of other Acts and subordinate statutes, and the act satisfying the requirements of the special law shall not meet the requirements of the special law.” The former Act provides that “The acts of offering and offering political funds shall not meet the requirements of the special law, but shall not meet the requirements of the special law.” Article 30(2)5 and Article 13 subparag. 2 of the former Act (amended by Act No. 7682 of Aug. 4, 2005; hereinafter “former Political Fund Act”) provides that “The acts of offering and offering funds to public officials shall be excluded from the scope of the elements of the special law which constitute a violation of Article 132 subparag. 3 of the Criminal Act, and thus, the former Act provides that “The acts of offering and offering funds to public officials shall be excluded from the scope of the legitimate political funds by offering and offering funds.”

In addition, even if money and valuables are given and received under the pretext of political funds, election funds, and gold, it does not lose the nature of a bribe as long as it is given and accepted by a political public official to arrange matters belonging to the duties of other public officials by taking advantage of his status (see Supreme Court en banc Decision 96Do3377 delivered on April 17, 1997, etc.).

Upon examining the records in light of the above legal principles, the court below held that the money and valuables received by the defendant is not a political fund provided by the former Political Fund Act, but a bribe with the substance of consideration for arranging matters belonging to other public officials by taking advantage of his status, and therefore maintained the judgment of the court of first instance, which is reasonable in the application of Article 132 of the Criminal Act with respect to the defendant's acceptance of the referral acceptance of the referral acceptance of the case, which is the rate of punishment for aggravated crimes under Article 2 (1) 1 of the Act on the Aggravated Punishment, etc. of Specific Crimes, which shall be applied in preference to the Act on the Aggravated Punishment, etc. of Specific Crimes. In this case, the court below rejected the defendant's assertion that the defendant's act of the referral acceptance of the case should be governed by the former Political Fund Act prior to the application of the Act on the Aggravated Punishment, etc. of Specific Crimes, as alleged in the ground of appeal. It does not err in the misapprehension of legal principles as to the relation between the Act on the Aggravated Punishment, etc. of Specific Crimes and Political Funds.

2. As to the Prosecutor’s Grounds of Appeal

The burden of proof of criminal facts prosecuted in a criminal trial is the prosecutor, and the finding of guilt must be based on the evidence with probative value, which makes the judge feel true beyond a reasonable doubt. Thus, if there is no such evidence, even if there is doubt of guilt against the defendant, it shall be determined with the benefit of the defendant (see, e.g., Supreme Court Decisions 2005Do7989, Jan. 26, 2006; 2006Do735, Apr. 27, 2006).

In addition, in the case of bribery, in order to admit the defendant, who was selected as the bribe recipient, denies the fact of the bribery, and there is no evidence such as financial data to support the bribery, there is not only the admissibility of evidence, but also a credibility to exclude a reasonable doubt. In order to determine the credibility of the statement, not only the rationality, objective reasonableness, consistency before and after the statement itself, but also its human nature, and the existence of interests derived from the statement should be examined (see Supreme Court Decisions 2000Do5701, Jun. 11, 2002; 2005Do4411, Sept. 29, 2005, etc.).

The lower court affirmed the first instance judgment that acquitted the Prosecutor on this part of the facts charged on the Prosecutor’s appeal on the ground that the evidence submitted by the Prosecutor alone cannot be readily concluded, in light of the following circumstances, on the basis that comprehensively taking account of the admitted evidence, the lower court affirmed the first instance judgment that acquitted the Prosecutor on this part of the facts charged.

Examining the records in light of the above legal principles, we affirm the above measures of the court below as just, and there is no violation of law such as incomplete deliberation or misconception of facts against the rules of evidence or the rules of experience, as alleged in the grounds of appeal.

3. Conclusion

Therefore, all appeals by the prosecutor and the defendant are dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Si-hwan (Presiding Justice)