[1] The meaning of "the receipt of money or other valuables or benefits" and the requirements for the establishment of "the receipt of money or other valuables or benefits concerning the referral of matters belonging to the public official's duties in the crime

[2] The case holding that the crime of mediation acceptance is not established on the grounds that the donor and the addressee merely delivered or received money and valuables in a remote expected sense and there was no specific help or specific request

[1] "Receiving money and valuables or other benefits" as stipulated in Article 3 of the Act on the Aggravated Punishment, etc. of Specific Crimes refers to the act of receiving money and other valuables under the pretext of arranging matters belonging to the public official's duties, and it does not necessarily require specific specification of the contents of the public official's duties. However, in order for the crime of arranging acceptance and taking disciplinary action to be established, matters to be mediated belong to the public official's duties, and matters to be mediated are related to the referral of such matters, such as money and other valuables, etc., and only if the money and other valuables are well seen by the recipient of the money and other valuables, the money and other valuables shall be delivered to the recipient of the money and other valuables, etc. at a so-called expectation that there is no possibility of receiving any help or causing any loss, and the recipient of the money and other valuables shall not be deemed to have established the crime of arranging acceptance and taking disciplinary action solely on the basis that

[2] The case holding that the crime of mediation acceptance is not established on the grounds that the donor and the addressee only delivered or received money and valuables in a remote expected sense, but did not specifically help them or have requested a specific request

[1] Article 3 of the Aggravated Punishment Act / [2] Article 3 of the Aggravated Punishment Act

[1] Supreme Court Decision 2000Do2968 delivered on October 26, 2001 (Gong2001Ha, 2633)

Lestical beverage

Defendant and Special Prosecutor

Attorney Kim Young-jin

Seoul High Court Decision 2004No1411 delivered on August 17, 2004

Each appeal shall be dismissed.

The grounds of appeal are examined.

1. As to the Defendant’s grounds of appeal

A. As to the receipt of political funds of KRW 83 million from 8 persons, including Nonindicted 1, etc., KRW 20 million from Nonindicted 2, KRW 21 million from Nonindicted 3, KRW 21 million from Nonindicted 4, and KRW 5 million from Nonindicted 4

Examining the evidence specified in the reasoning of the judgment of the court below and the judgment of the court of first instance cited by the court below in light of the records, the court below is justified in holding that the court below did not grant each of the above amounts to the pure personal-friendly relationship between the defendant and the non-indicted 8, the non-indicted 2, the non-indicted 3, and the non-indicted 4 as a political fund to be used as expenses incurred in relation to the political activities of the defendant, not as a loan or a pure personal-friendly relationship with the defendant, and therefore maintained the judgment of the court of first instance which convicted the defendant, and there is no violation

The judgment cited in the ground of appeal is different from the case, and it is not appropriate to be invoked in this case, and the judgment below is not erroneous in violation of the precedents.

B. As to the receipt of political funds from the Chairperson of the SK Group from Nonindicted 5

Examining the evidence specified in the reasoning of the judgment of the court below and the judgment of the court of first instance cited by the court below in light of the records, the court below is just in finding that there was evidence of crime as to the fact that the defendant conspired with Non-Indicted 6 and received a certificate of deposit amount of KRW 1.1 billion from Non-Indicted 5 as political funds, and therefore, the court below affirmed the judgment of the court of first instance which found the defendant guilty. There is no violation of the rules of evidence, as otherwise alleged in the ground of appeal, such as misconception of facts or violation

C. As to the receipt of political funds of KRW 20 million from Nonindicted 7

Examining the evidence specified in the reasoning of the judgment of the court below and the judgment of the court of first instance cited by the court below in light of the records, the court below is just in finding that there is evidence of a crime as to the fact that the defendant received KRW 20 million from Nonindicted 7 as political funds, and maintaining the court of first instance convicted of the defendant, and it is not erroneous in the misconception of facts against the rules of evidence or in the violation of the Constitution and the Criminal Procedure Act, as otherwise alleged in the ground of appeal.

D. As to the additional collection

Examining the reasoning of the judgment below in light of the records, the court below acknowledged that the defendant managed KRW 260 million in total, including KRW 110 million in cash 150 million in the central party and KRW 150 million in cash funded by non-indicted 6 delivered from the non-indicted 6, and did not use it as the substitute fund, and used KRW 100 million in the office expenses of the so-called "voluntary Joint and Several" after the presidential election, and gave the defendant's wife the remainder of KRW 160 million in the defendant's wife, and received KRW 190 million separately from the non-indicted 6 after the presidential election was completed, and determined that the above substitute fund was actually used for the personal purpose of the defendant, unlike the purport of the donator, and it did not err in the misapprehension of legal principles as to the remainder of KRW 100 million in the aggregate of KRW 300 million in the grounds for appeal, and it did not err in the misapprehension of legal principles as to the remainder of the funds received from the non-indicted 6.

In addition, the Defendant asserts that the amount equivalent to KRW 20 million received from Nonindicted 2, KRW 21 million received from Nonindicted 3, KRW 5 million received from Nonindicted 4, and KRW 20 million received from Nonindicted 7, on the premise that the said amount is not political funds, all of which are not subject to collection. However, the lower court’s determination that the said money all constituted political funds is justifiable, and therefore, the lower court’s determination that the said money all constituted political funds is also justifiable, and therefore, it is also justifiable to accept the allegation in the grounds of appeal on this part.

2. As to the grounds of appeal by the special prosecutor

A. As to the fact that in collusion with Nonindicted 6, it received money of KRW 300 million from Nonindicted 7 and pretended to acquire it

(1) The summary of this part of the facts charged is as follows: (a) around January 30, 2003, the Defendant conspired with Nonindicted 6, and (b) around 2003, at the 1st floor of the 598-dong, Geumdong-gu, Busan, Non-Indicted 6, and Non-Indicted 6, who received 300 million won in total from Nonindicted 60 million won and received 30 million won in exchange for money and valuables from Nonindicted 7 as the candidate of the Newcheon Democratic Party, including the Defendant, as well as from the fact that the Defendant played a big role in the Busan Gyeongdong Camp Camp, which could help many business operations in the future; and (c) at the same time, the Defendant would be able to receive 30 million won in total from such 30 million won in exchange for money and valuables from such 60 billion won in connection with the above 360 million won in exchange for money and valuables from such 300 million won in Busan.

(2) On February 3 of the same year, the court below found that the non-indicted 6 received a total of KRW 300 million in face value 100 million from the non-indicted 7 and exchanged the above KRW 300 million in KRW 20 million in KRW 15,00,00 in KRW, but it is not sufficient to recognize that the defendant conspiredd with the non-indicted 6 with regard to the above act such as the receipt and exchange of the checks by only the statement in the ship owner, Epician, the investigation agency of the non-indicted 7, or the court, and on the contrary, there is no other evidence to recognize it, and on the contrary, there is no possibility that the non-indicted 6 received KRW 300,00 from the non-indicted 7 independently without the prior consent of the defendant, and sentenced the non-indicted 6 to this part of the charges.

(3) Examining the reasoning of the judgment below in light of the relevant legal principles and records, the fact-finding and judgment of the court below are justified, and there is no error of law such as misconception of facts or misapprehension of legal principles due to the violation of the rules of evidence or incomplete hearing, as otherwise alleged in

B. As to the violation of the Act on the Aggravated Punishment, etc. of Specific Crimes

(1) The summary of this part of the facts charged is ① the defendant's request for the above 30 million won of 830 million won of 15 January 203, 200, which was issued 70 million won of 70 million won of 30 million won of 70 million won of 70 million won of 30 million won of 70 million won of 70 million won of 70 million won of 100,000 won of 30 won of 70 million won of 70,000 won of 70 won of 30,000 won of 10,000 won of 30,000 won of 6,000 won of 70,000 won of 30,000 won of 10,000 won of 7,000 won of 30,000 won of 10,000 won of 30,000 won of 30,00 won of 3.

(2) As seen earlier, the lower court affirmed the first instance court’s judgment on the following grounds: (a) insofar as it is deemed that there was no proof that the Defendant conspired with Nonindicted 6 to receive KRW 300 million from Nonindicted 7 on the fact that the Defendant received KRW 300 million from the check; and (b) as to the money and valuables received from Nonindicted 3 and Nonindicted 4 separate from Nonindicted 7, Nonindicted 7 gave money to the Defendant as he would have contributed to the business activity; and (c) Nonindicted 3 stated, and Nonindicted 4 stated, and stated, in its judgment that the Defendant would not be deemed to have contributed to the operation of the said modern securities, and stated that there was no specific intention or request, and thus, it cannot be deemed that the Defendant received money as a broker for the public official’s duties.

(3) “Receiving money and valuables or other benefits” as stipulated in Article 3 of the Act on the Aggravated Punishment, etc. of Specific Crimes refers to the act of receiving money and valuables under the pretext of arranging matters belonging to the public official’s duties, and it does not necessarily require specific specification of the content of the public official’s duties (see Supreme Court Decision 2000Do2968, Oct. 26, 2001). However, in order to establish the crime of receiving and arranging money and other valuables, the matters to be mediated belong to the public official’s duties, and the fact that the name of receiving money and other valuables belongs to the public official’s duties is related to the referral of such matters. On the other hand, if the money and other valuables are well visible to the recipient of the money and other valuables, it cannot be deemed that the crime of receiving and arranging money and other valuables is established merely because the money and other valuables are provided and received by the donor with such expectation.

Examining the reasoning of the judgment below in light of the above legal principles and records, the court below's decision that the crime of acceptance of good offices in relation to the money and valuables received from the non-indicted 7, the non-indicted 3, and the non-indicted 4 is just and acceptable, and there is no error in the misapprehension of legal principles as to the crime of acceptance of good offices, as otherwise alleged in the ground of appeal.

C. As to the fact that political funds are received from a person who is not his name or a person who is not the same as or his name and pretended to be acquired

(1) The summary of this part of the facts charged is as follows: (1) on December 17, 2002, the office of the Busan Metropolitan City Headquarters for Countermeasures against Election of the New Do Branch of Busan Metropolitan City is to receive political funds in a manner not prescribed by the Political Fund Act, (2) on March 2003, without issuing a receipt of political funds in the name of Busan Metropolitan City, and to receive 35 million won as a substitute fund, (3) on the receipt of political funds in a manner not prescribed by the Political Fund Act, (4) on the receipt of cash receipts from a person who is not his name but has paid 50 million won in cash from a person who is not his name, and (5) on the receipt of political funds in the name of the defendant 10 million won, and (7) on the receipt of 200 million won, which is the above criminal proceeds, (5) on the receipt of political funds in the name of the defendant 10 million won or less, and (5) on the receipt of political funds in the name of the defendant 2000 billion won or less.

(2) As to this, the court below rendered evidence supporting each of the above facts charged, the defendant exchanged 35 million won to his own account on or around December 18, 2002, the materials that the order of prosecution deposited 35 million won to his own account on or around March 17, 2003; the materials that deposited 50 million won to his own account on or around March 17, 2003 upon the request for transfer request; the materials that remitted 50 million won to the account on or around June 3, 2003; the materials that remitted 15 million won to the largest amount account in his name on or around June 3, 2003; the materials that the defendant did not know the source and remittance of each of the above money; and the materials that the defendant did not know about the source and remittance of the money; and the materials that the defendant did not know about the money, the materials that the defendant made a statement that he received 15 million won from his own account on or around June 12, 2003, were not guilty.

(3) Examining the reasoning of the judgment below in light of the relevant legal principles and records, the fact-finding and judgment of the court below are justified, and there is no error of law such as misconception of facts due to violation of the rules of evidence or incomplete deliberation, as otherwise alleged in the ground of appeal.

3. Conclusion

Therefore, each appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices.

Justices Shin Hyun-chul-chul (Presiding Justice)