(영문) 대전고등법원 2014.1.15.선고 2013노533 판결

The part of the judgment of the court below against Defendant A is reversed. Defendant A shall be punished by imprisonment with prison labor for two years. The penalty of KRW 120,000,000 shall be additionally collected from Defendant A. Defendant B’s appeal is dismissed.

Reasons

1. Summary of grounds for appeal;

A. Defendant A

The sentencing of the court below (three years of imprisonment) is too unreasonable.

B. Defendant B

(1) Unreasonable sentencing

The sentencing of the court below (one year of imprisonment) is too unreasonable.

(2) Unfair collection amount

The charge of violation of the Attorney-at-Law Act against Defendant B is that Defendant A, Defendant B, and B were jointly recruited and received KRW 75 million from H. However, the above Defendant A stated that the amount of KRW 45 million out of the above KRW 75 million was delivered to Defendant B and other co-offenders, but it is not true. Therefore, this case constitutes a case where it is impossible to identify the actual amount of the value received among the co-offenders, and thus, it constitutes only KRW 25 million (=75 million) in equal amount with Defendant B, but only KRW 45 million should be collected, thereby affecting the conclusion of the judgment by misapprehending the legal principles.

2. Determination

A. Ex officio determination on Defendant A (the offering of bribe to A out of the facts charged in the instant case)

(1) Summary of the facts charged

Of the facts charged in the instant case, Defendant A provided A with alcohol and entertainment to the Institute in Songpa-gu Seoul around August 2008, which was in charge of the distribution control and general affairs of pseudo Petroleum distribution as the Institute E in Songpa-gu, AF (Defendant A) was recommended from A to the effect that “AF (A) is a shot, and Irhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnhhhhhhhhhhhhhhhhhhhhhhhhhhhhhnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnnn?

(2) The judgment of the court below

The court below acknowledged the credibility of the defendant's statement that he given a bribe to A and rejected the statement of the AA denying it, and found the defendant guilty of this part of the facts charged.

(3) Judgment of the court below

(A) Relevant legal principles

The establishment of facts constituting an offense in a criminal trial ought to be based on strict evidence with probative value, which leads a judge to have such convictions as to the extent that there is no reasonable doubt. Therefore, in a case where the prosecutor’s proof does not sufficiently reach the extent that such convictions are to be followed, the case may

Even if the defendant's assertion or defense is inconsistent or unreasonable, it is doubtful that the defendant's guilt has been guilty (see, e.g., Supreme Court Decisions 201Do767, Apr. 15, 2005; 2005Do767, Apr. 15, 2005).

On the other hand, in the case of bribery, where the other party who was designated as the bribery recipient denies the fact of the bribery at the time of the bribery and there is no evidence, such as financial data to support the bribery, the evidence should be admissible, and there should be credibility to exclude a reasonable doubt. In determining credibility, not only the rationality, objective reasonableness, consistency before and after the statement itself, but also the human nature of the other party, and in particular, in the case where there is a suspicion of a crime committed against him/her and there is a possibility that the investigation may be initiated, or an investigation is being conducted, if there is a possibility that the statement might be denied, and even if there is no evidence such as financial data to support it, it should also be examined (see Supreme Court Decision 200Do5701, Jun. 11, 2002).

Defendant A is a confession that he/she provided money and valuables to A from the investigative agency to the trial.

However, according to the records, AA, which received money from Defendant A, refused its proposal at the time of acceptance of bribery and denied the fact of acceptance of bribery, and there is no evidence, such as financial data to support it; among Defendant A’s statements, the part that A introduced AL AI at the time of Defendant A’s introduction to Defendant A and the part that A provided control information to Defendant A does not have any objective evidence to confirm it; unlike other petroleum managers’ staff who provided money and valuables, AA did not use a borrowed phone from Defendant A; it was very natural and has no evidence to confirm the fact that A attempted to grasp the control information in advance; Defendant A did not have any evidence to confirm the fact that it was very natural and actual control information; Defendant A was conducted with a malicious appraisal of Pyeong A; Defendant A was investigated as a bribe to the employees of the Institute; and there is no possibility of not being informed of false information for the purpose of being informed in this case.

In full view of the above circumstances, the lower court’s judgment convicting Defendant A of this facts is erroneous by misapprehending the facts and adversely affecting the conclusion of the judgment, even though the evidence submitted by the prosecutor alone cannot be deemed to have been proven beyond reasonable doubt as to the fact that Defendant A provided money and valuables to Defendant A.

However, in a case where the court recognizes a more minor criminal facts included in the criminal facts charged within the scope that are identical to the facts charged, if it deems that there is no concern about causing substantial disadvantage to the defendant's exercise of his/her right to defense in light of the progress of the trial, the court may, ex officio, recognize the facts charged different from the facts charged as stated in the indictment even if the indictment was not modified (see, e.g., Supreme Court Decision 2004Do3934, May 25, 2006). The expression of intent to offer a bribe, the basic facts of which are identical and within the scope that is recognized as identical to this part of the facts charged, shall not be likely to cause substantial disadvantage to the defendant's exercise of his/her right to defense in light of the progress of the trial in this case. According to the evidence duly adopted and investigated by the court below, it is recognized that "the defendant expressed his/her intention to give A a bribe of KRW 20 million at the date and place of the facts charged,"

B. As to Defendant B’s assertion

(1) As to the assertion on the amount of additional collection

A) Relevant legal principles

The purpose of necessary confiscation or collection under Article 94 of the former Attorney-at-Law Act (wholly amended by Act No. 6207, Nov. 28, 2000) is to prevent a person who violates the provisions of Article 27 of the same Act or commits an offense under Article 90 subparagraph 1 or 2 of the same Act or a third party who is aware of such violation from holding unjust profits by depriving him of his money, valuables, or other benefits he received. Thus, in cases where money and valuables have been distributed under the pretext of solicitation for cases or affairs handled by a public official jointly by several persons, each person shall individually confiscate or collect the value thereof (see, e.g., Supreme Court Decision 96Do2490, Nov. 29, 196).

In cases where multiple persons publicly offer and jointly accept money and valuables under the pretext of solicitation for a case dealt with by public officials, and where it is impossible to know the value actually received among their accomplices, the method of collection shall be equally collected (see Supreme Court Decision 2007Do170, Feb. 23, 2007).

B. In the instant case

According to the evidence duly adopted and investigated by the court below, in particular, Defendant A and B's prosecutor's statements), it is recognized that the defendants received a total of KRW 75 million in the name of the public official's request in collusion with H for the affairs handled by the public official, and that Defendant B has delivered KRW 30 million among them to Defendant A.

However, in this case where there is no evidence to prove that BM received the above KRW 75 million from H in collusion with the Defendants (the record shows that BM was involved in mediating pseudo petroleum, etc., but further, there is no evidence to prove that BM committed a crime of violation of the Attorney-at-Law Act with the Defendants, and as long as BM cannot be acknowledged as a co-offender of the violation of the Attorney-at-Law Act, the part of the amount received by Defendant B as the crime of this case can be delivered to BM or used for living expenses, etc. as alleged by the counsel. Even if in light of the above legal principles, it cannot be collected equally on the grounds that it cannot be deducted from the additional collection amount for Defendant B or determined the actual amount distributed. Ultimately, Defendant B cannot be collected additionally on the grounds that it is the co-offender of the violation of the Attorney-at-Law Act, which is the co-offender of this case.

Therefore, the lower court’s conclusion that additionally collected KRW 45 million from Defendant B is justifiable, and the defense counsel’s assertion is not acceptable.

(2) On the assertion of unreasonable sentencing

Defendant B recognized and reflected the instant crime; the degree of participation in the violation of the Attorney-at-Law among the instant crimes is relatively minor; and the criminal escape out of the instant crime appears to have arisen from the human support of Defendant A; and it is more favorable that Defendant has no special criminal record except for punishment imposed once by fine for a type different from the instant crime.

However, in full view of the fact that the crime of this case received money and valuables under the name of leakage of pseudo petroleum information with Defendant A, and that it cannot be deemed that the responsibility cannot be deemed that the crime of this case prevents the State from exercising appropriate judicial power by providing a residence or a vehicle to Defendant A, whose crime is revealed, and that the amount of money received as a result of the crime of violation of the Attorney-at-Law Act cannot be deemed to be less than that of the crime of this case, and that all the sentencing conditions against Defendant B are too unreasonable.

3. Conclusion

Therefore, the part of the judgment of the court below regarding the offering of a bribe to Defendant A cannot be maintained, and the remaining criminal facts against Defendant A constitute concurrent crimes under the former part of Article 37 of the Criminal Act, and thus, one sentence is imposed against Defendant A. Thus, since the part against Defendant A among the judgment of the court below cannot be maintained, the part against Defendant A among the judgment of the court below pursuant to Article 364 (2) of the Criminal Procedure Act is reversed, and it is again decided as follows after pleading. Since the appeal against Defendant B is without merit, it shall be dismissed pursuant to Article 364 (4) of the Criminal Procedure Act.

In case of the defendant A, the judgment which was used again for the defendant A shall be subject to criminal facts and summary of evidence.

Except for the provision of Article 2-2-2(b)(A) of the facts constituting the crime of the lower judgment (the offering of a bribe to A and the provision of a bribe to 4-8(8) through 19 of the lower judgment) as follows, it is as stated in the corresponding column of the lower judgment.

(A) At around August 2008, the Defendant provided AD studs in Songpa-gu, Seoul, with alcohol and entertainment to AAE, who has been in charge of the distribution control and general affairs of pseudo petroleum, and expressed his intention to deliver 20 million won in cash to AA in relation to the duties of executive officers and employees of the Institute who are deemed public officials, upon receiving a recommendation from AF (Defendant) to the effect that “AAA” is a flusent, and that “AF (Defendant)” is a flusent so far as I am I am I am I am I am I am I am I am I am I am I am I am I am I am I am I am I am I am I am I am I am I am I am I am I am I am I am I am I am I am I am I am I am I am I am I am I am.

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

Article 111(1) and (2) of the Attorney-at-Law Act, Article 30 of the Criminal Act, Article 111(1) and (2) of the Attorney-at-Law Act, Article 133(1) and Article 129(1) of the Criminal Act, Article 50, Article 43(2) of the former Petroleum and Petroleum Substitute Fuel Business Act (Amended by Act No. 11234, Jan. 26, 2012); each of the offering of bribe to AA, each of the offering of bribe to AI, AO, and AX, each of the offering of bribe to AA, each of the offering of bribe to AA, each of the offering of bribe to AA, each of the offering of bribe to A, each of the offering of bribe to A, each of the offering of bribe to A, each of the offering of bribe to A, each of the offering of bribe to be imprisonment, each of the offering of bribe to A, each of the offering of bribe to A), Article 133(1) and Article 129(1) of the Criminal Act

1. Aggravation for concurrent crimes;

The former part of Article 37, Article 38 (1) 2, and Article 50 of the Criminal Act (aggravated Punishment for Forgery of Public Document with the most severe punishment)

1. Additional collection:

The reasons for sentencing after the latter part of Article 116 of the Attorney-at-Law (the basis for calculating the amount of additional collection: KRW 75 million received from H and KRW 120 million plus KRW 90 million received from X) of the amount distributed by the defendant

(a) The scope of punishment by law: Imprisonment with prison labor for not more than 15 years;

(b) Application of the sentencing criteria;

1) Each crime of offering of bribe

[Determination of Types of Bribery] Types 4 (at least KRW 100 million)

[Special Emotionals] Reduction element - Internal Blusium - Active Briberys, and where the contents of solicitation are illegal or illegal in the course of business.

[Determination of Recommendation Area] Aggravation, 3 years to 5 years

2) The crime of forging an official document

[Determination of Punishment] Type 1 (Determination of a Non-Business Non-Organization), Basic Field (Determination of Recommendation Region), 8 months to 2 years, etc. of imprisonment, such as forgery, alteration, etc. of official documents;

3) The final sentence scope according to the standards for handling multiple crimes: (a) since the crime of violation of the Attorney-at-Law Act, which has not been set the sentencing guidelines for more than three years, is concurrent crimes under the former part of Article 37 of the Criminal Act, only the lower limit of the recommended sentence scope shall be considered. In order to avoid the control, the crime of the case of sentencing is a case where: (b) the Institute executives and employees with authority to control pseudo petroleum, and police officers with large money and valuables are provided to the gas station dealing with pseudo petroleum; and (c) the information actually received from them is notified to the gas station dealing with pseudo petroleum; and (d) the crime of forging up until a resident registration certificate, which is an official document, is forged in order to avoid the control of pseudo petroleum; (c) it is inevitable for Defendant A to have the record of punishment for the same kind of crime; (d) the fact that Defendant A cooperates in an investigation by itself and cooperates with the investigation agency; and (e) that need treatment due to the ideal and escape of spin, etc. is more favorable to voluntary statements of Defendant A’s.

The non-guilty part (the offering of bribe to A)

The summary of this part of the facts charged is as above 2-A(1).

As seen in Article 325 (3) of the Criminal Procedure Act, inasmuch as there is no proof of a crime, this part of the facts charged should be pronounced not guilty pursuant to the latter part of Article 325 of the Criminal Procedure Act. However, in a case where the court pronounced guilty of the indication of the intention to offer a bribe in relation to the crime, the court shall not

Judges

The presiding judge, judge and assistant judge;

Judges Lee Hyun-woo

Judges Kim Dong-dong

Note tin

1) Defendant A’s indictment against A for acceptance of bribe in response to the offering of bribe to Defendant A, and imprisonment with prison labor for the Daejeon District Court 1

On the same day as this case, the appellate court was sentenced to a judgment (not guilty) on the same day (Seoul High Court 2013Do404), after having been sentenced to two months a year or more;

2) The contents are same as Article 116 of the Attorney-at-Law Act.

3) No. 1764-1767 of investigation records

4) The prosecution’s punishment against Defendant A is one year of imprisonment.

심급 사건

-대전지방법원천안지원 2013.11.6.선고 2013고합114

대전고등법원 2014.1.15.선고 2013노533

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