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Defendant
All appeals filed by A and the prosecutor against the Defendants are dismissed.
Reasons
1. Summary of grounds for appeal;
A. The punishment sentenced by the lower court (two years of imprisonment, additional collection, and provisional payment order) is too unreasonable.
B. The Defendant’s statement that Defendant A delivered KRW 10 million to Defendant B of mistake of facts (not guilty part against Defendant A), despite its credibility, the lower court rejected it, and the lower court erred by misapprehending the facts, thereby adversely affecting the conclusion of the judgment. 2) The sentence imposed by the lower court on Defendant B of unreasonable sentencing (not guilty part against Defendant A) is too unreasonable and unfair.
2. Determination
A. In light of the fact that the criminal appeal court held that the prosecutor’s assertion of mistake of facts against the Defendants has the nature as an ex post facto trial even after the fact is open to the court and that there is insufficient evidence to exclude a reasonable doubt after undergoing the examination of evidence such as a witness under the Criminal Procedure Act, in a case where the first instance court acquitted the Defendants of the facts charged on the grounds that there is insufficient evidence to acknowledge a reasonable doubt, if it does not reach the extent to sufficiently resolve the reasonable doubt caused by the first instance trial as a result of the examination of the appellate court, such circumstance alone is insufficient to conclude that there was an error of misunderstanding of facts in the judgment of the first instance court, and thus, it shall not be found guilty of the facts charged (see, e.g., Supreme Court Decision 2012Do14516, Apr. 28, 2016). The lower court determined that it is difficult to view that the statement by the Defendant A’s investigative agency and the prosecutor of the indictment of the Defendant A with respect to the bribery of bribe by the Defendant A, the remaining evidence submitted by the prosecutor alone is insufficient without reasonable doubt.
The court below held.