2018No2187 Bribery

A

Defendant

He/she shall be able to bring his/her indictments (prosecutions) and Kim Byung-chul (Public trial)

Law Firm (Limited) continental State

Attorney Kim Jong-soo

Law Firm LBBS Partners

Attorney Lee In-bok, Lee In-bok, Lee Jong-hoon, Lee Jong-hoon, Park Jong-hoon, and No.

Seoul Central District Court Decision 2018Gohap174 Decided July 13, 2018

7, 2019.19

The defendant's appeal is dismissed.

1. Summary of grounds for appeal;

A. Error of mistake

The defendant did not intend to offer a bribe to the defendant. The defendant understood that the request for the donation of the support fund was an occupational order for the benefit of the D Bank (hereinafter referred to as the "D Bank") and C Co., Ltd. (hereinafter referred to as the "C"), but did not accept the request for the offering of a bribe, which is an economic benefit, to the E individual.

B. Unreasonable sentencing

The punishment (fine 2.5 million won) sentenced by the court below is too unreasonable.

2. Determination

A. Judgment on the assertion of mistake of facts

1) The judgment of the court below

In light of the relationship between the D Bank and C, the status and authority of the president E, the representative director of the Defendant’s C, the Defendant’s donation period and circumstances of the Defendant’s donation, etc., the lower court determined that the Defendant donated at least KRW 17.4 million to the National Assembly members designated by E as the intent to offer the bribe to E. The specific reasons are as follows.

① On March 23, 2012, E merely stated that the Defendant’s list of members of the National Assembly was a list of members of the National Assembly, and that the said support was a political fund that he/she provided, and that the said support was paid at the D Bank or C’s corporate level.

2) The Defendant donated donations with personal funds, not with company funds, in the name of the donor, AE or AF, other than in the name of the D Bank or C, and following E’s instructions after the donation.

The above support money was phoneed to the National Assembly members and it was known that it was a device fund for individuals E.

③ The members of the National Assembly designated by E are only political persons whom E intended to personally sponsor. The Defendant stated in the prosecutorial office that E has an ability to report the list of the members of the National Assembly and that E is deemed to manage the members of the National Assembly, etc. belonging to the Political Affairs Committee of the National Assembly.

④ It seems that D Banks and C had not previously contributed political funds, such as support payments, to certain political parties at the corporate level.

⑤ In accordance with the direction of E, the Defendant stated in the prosecution that “E was able to work as the president of C, and it was difficult to refuse the demand because he thought that E was a kind of audit indication about the appointment of the representative director.”

2) Determination of the immediate deliberation

In light of the following circumstances duly explained by the lower court and based on the evidence duly adopted and examined by the lower court, the lower court’s aforementioned circumstances are examined.

The decision is just, and there is no error of misconception of facts pointing out by the defendant. This part of the defendant is without merit.

① The Defendant donated the support fund to the National Assembly members with their personal funds upon the request for the donation of the E, and the National Assembly members’ office made it recognized that the E donated the support fund to the National Assembly members. Q and AE, upon the Defendant’s instruction, stated in the court of law and the trial of the relevant case, that “The Defendant instructed the National Assembly members to deliver the support fund to the member of the National Assembly, and expressed that “E would be called “the Council room that the Defendant would deliver the support fund to the member of the National Assembly.” In relation to the support fund stated in the facts charged in the instant case, it appears that C and the Defendant did not indicate that the said support fund was donated in the process of the donation.

② On November 17, 2017, in Seoul High Court Decision 2017No1650, E was convicted of the crime of bribery with the purport that “E has received a bribe of 17.4 million won in total from the Defendant by having the Defendant donate the support payments indicated in the facts charged to the National Assembly members designated by E,” and the said judgment became final and conclusive as it is in Supreme Court Decision 2017Do20424 Decided May 11, 2018.

B. Determination on the assertion of unfair sentencing

The court below determined punishment against the defendant in favor of the defendant, considering the following circumstances: ① The crime of this case was committed under the circumstances unfavorable to the defendant: (i) the defendant, who was the representative director of C, who was the subsidiary of the D Bank, requested convenience provision, etc. in the course of performing his duties; (ii) the defendant was likely to refuse the demand of E with strong influence on C's overall management; (iii) there was no illegal solicitation after donation; and (iv) the crime of this case was committed under the concurrent relation between the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Misappropriation) and the crime of violation of Article 37 of the Criminal Act, which became final and conclusive; and (v) the fairness in judgment at the same time should be considered in relation to concurrent crimes under the latter part of Article 37 of the Criminal Act.

The sentencing of the lower court seems to have been determined by fully taking into account the aforementioned various circumstances, and there is no special change in circumstances that may be assessed differently from the sentencing conditions of the lower court up to the trial. In addition, considering all the sentencing conditions in the pleadings, such as the Defendant’s age, character, conduct, environment, family relation, criminal records, criminal records, circumstances after the crime, and the result, it cannot be deemed that the sentence imposed by the lower court is too unreasonable to excess the reasonable scope of discretion. This part of the Defendant’s assertion is without merit.

3. Conclusion

Therefore, the defendant's appeal is without merit, and it is dismissed in accordance with Article 364 (4) of the Criminal Procedure Act. It is so decided as per Disposition.

Freeboard of the presiding judge and judge

Judges Cho Jin-jin

Judge associates