2016Gohap638, 754 (Joints)

(a) Violation of the Aggravated Punishment, etc. of Specific Crimes;

(b) Third party acceptance of bribe;

C. Violation of the Political Funds Act

1.(a)(c) A;

2.(c) B

Egroop (prosecution) and Kim Min-gu (Trial)

Law Firm C, Attorney D, E

Law Firm F, Attorney G

Attorneys H and I (at least for Defendant A)

Law Firm J, Attorney K (Defendant B)

December 8, 2017

1. Defendant A

A defendant shall be punished by imprisonment for not less than two years and six months.

10,000,000 won shall be additionally collected from the defendant.

Of the facts charged against the accused, the charge of violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (Bribery) shall be acquitted.

The summary of the acquittal part in this judgment shall be publicly notified.

2. Defendant B

A defendant shall be punished by imprisonment for six months.

except that the execution of the above punishment shall be suspended for two years from the date of the pronouncement of this judgment.

Criminal facts

Defendant A, from July 2010 to June 2014, was in office as the 17th Gyeongnam-do L market, was in office as the 17th Gyeongnam-do L market from July 2014 to the 18th Gyeongnam-do L market. On November 27, 2015, Defendant A, who was sentenced to the suspension of execution for 6 months at the Changwon District Court for a violation of the Public Official Election Act, was sentenced to the suspension of execution for 6 months from the 2015.

1. Defendant A

(a) Acceptance of money and valuables from M;

No one shall receive any contribution of any political fund by means that are not provided for in the Political Funds Act.

Nevertheless, around February 2014, the defendant requested N Co., Ltd. actual representative M to register the defendant's unregistered election campaign worker M with 0 as an employee of the company operating M, and to request the payment.

Accordingly, the above M consented to the above request for the construction of apartment buildings and the provision of various convenience in the process of carrying out the project, such as the construction and sale of apartment buildings in the P Zone, and around that time, the above request was falsely registered as an employee of Q Co., Ltd. (hereinafter referred to as " Q Q") who carried out the above request, and five times from February 28, 2014 to June 30, 2014, he paid KRW 13.6 million to the above0,000,000 in the form of the Nong Bank Deposit Account (Account Number R) as indicated in the attached Table of Crimes (1) in the name of benefit, from February 28, 2014 to June 30, 2014. Accordingly, the Defendant received the contribution of political funds in a way that did not

B. Receipt of money and valuables from B (Violation of the Political Funds Act)

No one shall receive any contribution of any political fund by means that are not provided for in the Political Funds Act.

Nevertheless, on September 201, the defendant requested B, who operates S Co., Ltd. (hereinafter referred to as the "S"), to register the defendant's unregistered election campaign worker 0 as the employee of the company run by B, with false registration of the defendant's unregistered election campaign worker 0.

B accepted the Defendant’s request, and thereafter, he falsely listed the above 00 won as S’s employee, from October 4, 201 to January 2, 2014, paid 82,700,000 won in total to 0 in the said Nong Bank’s deposit account as salary, and requested the U.S. Chairman, V, etc., the contractor of the factory construction construction corporation, to pay 00,000 won in lieu of 0,000 won in total to 0,000 won to 5, etc. as shown in the attached list of crimes (2).

As a result, the Defendant received a contribution of political funds by means not stipulated in the Political Funds Act.

2. Defendant B

No one shall contribute any political fund in any way that is not provided for in the Political Fund Act.

Nevertheless, from October 4, 201 to January 2, 2014, the Defendant falsely registered 0,000 won as indicated in the foregoing paragraph 1-B, and thereafter, paid 82,70,000 won in total to the Nong Bank Deposit Account of 0,000 won in terms of benefits to the Defendant. On June 2012, 201, the Defendant requested the U.S. Chairperson V, who is the contractor of the U-factory Construction Corporation, to pay 00,000 won in total to the above account of 0, and requested V, etc. to pay 19,000,000 won in total to the above account of 0,000 won as indicated in the List of Crimes (2) of the Political Funds Act. Accordingly, the Defendant contributed political funds in a manner that is not prescribed in the Political Funds Act.

Summary of Evidence

1. The defendant A's partial statement

1. Partial statement of a witness in the fourth trial record;

1. The statements of witnesses W and X in the fifth trial records;

1. Each legal statement of the witness M, Y, and Z;

1. The defendant A's partial statement in the interrogation protocol of the prosecution against the defendant A

1. Some of the suspect interrogation protocol of Defendant B by prosecution

1. First prosecutor's statement concerning 0;

1. Part of the first prosecutor's statement concerning M;

1. Statement by the prosecution concerning the Z;

1. Each investigation report (number 29, 30, 41, 43, 54, 57, 71, 88, 139, 141) and each of the above investigation reports attached thereto;

1. Determination as to the defendants and their defense counsel's arguments in criminal records (A), investigation reports (58) and the above investigation reports attached thereto

1. Summary of the assertion

A. Non-existence of admissibility

1) The first prosecutor’s statement in the case of 0th prosecutor’s statement is not voluntary, and it is not admissible as evidence. Even if the testimony is voluntary, since the prosecutor’s statement in the case of 0th prosecutor’s office was not again notified of the right to refuse to make a statement when the investigation was resumed after the investigation was suspended for his own intention, the part of the statement in the case of 2016Da6388) less than 575

2) The public prosecutor’s statement in M was not made under particularly reliable circumstances, and thus, the written statement is inadmissible as there is no voluntariness. Even if the prosecutor’s statement in M is voluntary, since M’s 2, 3 times the prosecutor’s statement in the public prosecutor’s office, and the suspect interrogation protocol to be replaced with the Defendant A violated the procedure on the right to refuse to make statements, it is inadmissible as illegally collected evidence

B. Absence of substantive relations

1) Defendant A

(1) It is not true that M has requested M to pay only money under the pretext of salary by registering it as a false employee.

② There is no difference between the facts that Defendant B asked for employment of 0.

2) Defendant BO entered into an actual business for the sale of industrial complex, and 0 entered into one contract.

C. Legal principles

Even if Defendant A had Defendant B pay the benefits on behalf of Defendant B, the time when Defendant B paid the benefits is irrelevant to the election campaign period of Defendant A. Therefore, the money and valuables received as above cannot be considered as political funds under the Political Funds Act.

2. Determination

A. Determination on admissibility of evidence

1) Whether the statement is voluntary

A) Relevant legal principles

In a case where the defendant contests the voluntariness of a witness’s statement entered in the protocol of statement on the witness prepared by the public prosecutor and the witness’s statement on the trial date and asserts it to be false, the court shall determine whether the above statement was made arbitrarily by free questioning in consideration of all the circumstances, such as the academic background, career, occupation, social status, intelligence level, contents of the statement, and the form of the protocol, according to the specific case (see, e.g., Supreme Court Decision 2003705, May 30, 2003).

B) Determination

① In full view of the following 0-year experience, social status, developments leading up to the statement, details of the statement, and the form of the protocol, which are acknowledged by evidence duly adopted and investigated by the court, the 0-year statement in the prosecutor’s statement prepared by the prosecutor is arbitrary.

0. At the time of the above prosecutor’s statement, it stated that there was no violation of human rights or intimidation from the prosecutor’s investigator in the process of search, seizure, and voluntary behavior, and that the prosecutor voluntarily attended the prosecutor’s voluntary request. In addition, after stating that “I do not have any description or any description different from the fact as stated in the protocol” in the prosecutor’s investigation prevents the prosecutor’s investigation, I affixed a seal to the question “I do not have any description or any description different from the fact”, and confirmed the contents of the prosecutor’s statement in the above prosecutor’s statement for about 20 minutes, and affixed a seal to the above prosecutor’s statement by directly sealing on the above prosecutor’s statement. 0 had been investigated as a suspect two times prior to the instant case, and there was a fact that the other person filed a complaint over two times. If there was any human rights violation against 0 in the prosecutor’s investigation process, it is difficult to view that 00, who had been experienced in the investigation by the investigation

③ The 0 stated that he graduated from AA High School and AB University, and that he/she was investigated by the investigative agency as above. Therefore, 0 appears to have been aware that he/she had much legal knowledge than general persons at the time when the said prosecutor’s statement was made, and that he/she was fully aware of the legal meaning of his/her statement.

Q0 made a detailed statement about the process of his activities as a member of the AC political party, the process of being introduced, the process of becoming aware of the defendant AD, the process of being employed by the defendant A, the process of being registered as a member of the S operated by the defendant B, the process of being employed by the defendant B, and the process of having paid money to himself in U not S.

⑤ In this Court, 0 was present as a witness, and the prosecutor’s investigation was suspended for the purpose of excessively strong and unsatisfying, she was asked to contact B’s counsel, and asked B’s counsel to seek advice to compel a false statement. If the above statement was true, at least 0 satisfys, and 0 did not cooperate with the prosecutor’s investigation, unlike the previous statement, from the time when the investigation was resumed. However, 0 continued to provide a detailed statement about specific circumstances where the prosecutor’s investigation was conducted for A.

0 The testimony of 00 alone does not seem to have been forced by a prosecutor to suppress 0 free will by means of intimidation, etc. as if the prosecutor would put any specific disadvantage to 0. Moreover, 0 does not clearly state the content and circumstances of compelling the prosecutor to make a statement at the time of the first statement. There is no other circumstance to deem that there was any unlawful or unjust act, such as intimidation to 0 at the time of the investigation by the said prosecutor.

(2) Whether M's statement made by prosecution is voluntary or not

As seen in the 6th paragraph (6) of the acquittal portion in the judgment, there are circumstances that are somewhat unsatisfying in the motive for the offering of bribe, but in light of the following circumstances recognized by this court comprehensively based on the evidence duly adopted and investigated, it is difficult to view that M’s statement in the prosecutor’s protocol of statement prepared by the prosecutor reaches the extent of denying the voluntariness.

M has made a statement that he provided a bribe to the defendant in the course of the embezzlement investigation of himself, and there is no evidence that there was any pressure to M in the course of the investigation (M, on June 2, 2016, stated that there was a fact that there was a return of money to the defendant in his embezzlement case, but it was stated that there was a mistake in the contents of the statement and there was a fact that there was a fact that he had been a money to the defendant in his embezzlement case.

② It seems that M appears that there was a voluntary motive that M would cooperate in the prosecutorial investigation to have made a statement to grant a bribe.

(3) In light of the education, experience, etc. of M, it is not confirmed that there is a special problem in the situation determination ability and memory of M, unlike ordinary persons.

C) Therefore, the Defendants and the defense counsel’s allegation of Voluntary nature is without merit.

2) Whether unlawful collection evidence is obtained

A) Relevant legal principles

Article 312(1) of the Criminal Procedure Act provides that the protocol in which a prosecutor makes a statement of a criminal suspect who has become the criminal defendant should be " produced in accordance with the due process and method" to recognize the admissibility of evidence of the protocol. Here, the term "legal procedure and method" means that a prosecutor complies with all the procedures prescribed by the Act, such as notification of the right to refuse to make a statement to the criminal suspect in the course of preparation of the protocol, and does not go against the preparation method of the protocol (see, e.g., Supreme Court Decision 2011Do757, May 24, 2012).

Meanwhile, in light of Article 12(2) of the Constitution of the Republic of Korea, and Articles 244-3(1) and (2) and 312(3) of the Criminal Procedure Act, even if the prosecutor informed the suspect that he/she can exercise the right to refuse to make statements and asked questions as to whether he/she exercised the right to refuse to make statements, the suspect's answer as to whether he/she exercised the right to refuse to make statements in violation of the method prescribed in Article 244-3(2) of the Act is not written as a self-written statement, or the suspect's interrogation protocol prepared by the prosecutor that does not have the suspect's name and seal or signature on the reply cannot be deemed as a protocol prepared in accordance with the "legal procedure and method" under Article 312(3) of the Act, barring any special circumstance (see Supreme Court Decision 2010Do359, Mar

However, the notification of the right to refuse to make a statement to prevent a suspect from being forced to make a statement by guaranteeing the suspect's right to refuse to make a statement effectively. Considering the content of the provisions of the Criminal Procedure Act regarding the notification of the right to refuse to make a statement and the practical meaning of the notification of the right to refuse to make a statement, the status of a suspect subject to notification by an investigative agency should be deemed to be recognized when the investigative agency acknowledged the criminal charge against a person subject to investigation and started an investigation. Therefore, even if the right to refuse to make a statement is not notified, the admissibility of the statement is not denied (see Supreme Court Decision 2011Do8125, Nov. 10, 201

B) Determination

(1) Statement by prosecution of 0

In the case of the first prosecutor's statement about 00, the 0th prosecutor's statement was made at 14:30, the investigation was completed at 21:50, and the protocol was perused for 21:50 through 22:10, and the contents of other matters necessary for the progress and confirmation of the investigation process, objection to the entries in the investigation process, and the statement of opinion are stated as "no matter". In other words, the above prosecutor's statement at the time of the above prosecutor's statement was understood that the investigation continued before and after the after the aftermath, and there was no objection in the procedure. Thus, as long as the above prosecutor's statement was notified of the right to refuse to make a statement prior to the time of making a statement, the effect of the above right to refuse to make a statement cannot be deemed to be terminated (if it is cut, the defendant, etc. was made at the time of the investigation, and the whole right to refuse to make a statement should be notified again.)

② The Defendant and his defense counsel also dispute about the second prosecutor’s statement about the 0th prosecutor’s protocol in violation of Article 244-3(1) and (2) of the Criminal Procedure Act, which is inadmissible in accordance with the principle of exclusion of illegally collected evidence. However, the second prosecutor’s protocol in question is not used as evidence of guilt, and thus

(2) The prosecutor's statement of M

In light of the following circumstances revealed by the records of this case, namely, 0 M, written statements after stating that he/she had given a bribe to Defendant A at the time of investigating the case of embezzlement on the new wall on June 3, 2016, 200 following the above statements, Ma was investigated by the first prosecutor’s office on June 10, 2016, 3206, and Defendant A received a bribe from Defendant A on June 3, 32016. The draft written report on the criminal branch was prepared, and the above written report was completed immediately after the prosecutor’s investigation on M was conducted, at least on June 10, 2016, and immediately after the first prosecutor’s investigation on M, it should be deemed that the status of the criminal suspect is recognized to M.

Therefore, among the prosecutor's statement Nos. 2 and 3 of M, and the suspect interrogation protocol with the defendant A, M's statement is made in the position of M as the suspect.

However, in the case of each of the above statements, it is not clear whether M knew of the whole of the paragraphs of Article 244-3(1) of the Criminal Procedure Act to M, as well as whether M’s reply as to whether to exercise the right to refuse to make a statement is written as a pen, or M’s name and seal or signature is not written on the answer part, thereby violating the method prescribed in Article 244-3(2)

If so, M's statement statement Nos. 2 and 3 of M and statement of each prosecutor's office and statement of M's interrogation protocol with the defendant A are inadmissible.

C) Therefore, there is no reason for the part of the Defendants’ and their defense counsel’s allegation of illegality collection evidence, and M is justified.

B. The part that did not receive false benefits from this M and Defendant B

Comprehensively taking account of the following circumstances acknowledged by the evidence examined above, it is recognized that 0 was falsely registered as an employee in S and Qa operated by Defendant B, and that 0 was engaged in an election campaign for Defendant A.

1) Regarding the election campaign for Defendant A of 0

① At the time of the first prosecutorial statement, at the time of the election in 02010 and 2014, Defendant A carried out an election campaign for the purpose of Defendant A’s election at the time of local election in 2014, and Defendant A continued to manage a local constituency for re-election. ② After joining AC political party in 2009, at least 2,00 new party members were recruited, and the application period for joining the party members recruited as above was delivered to AD, who is the chief secretary of the office of secretary of the Defendant A. ③ There was no special occupation at the time of the election campaign, and the money in the name of the benefits received from Defendant B and M was used as 0 daily living expenses and election campaign expenses for Defendant A. The statement made by Defendant B and M is highly reliable as it stated that it was difficult to know the specific circumstances without making himself/herself.

② Defendant A also heard at the prosecutor’s office that “0 from the witness of the election was a member of the AC political party from the fifth period (local election in 2010) to the fifth period (local election in 2010). Although there was no relationship between 0 and her relative, the 0’s son was the president of the AE region, and the 0’s son was aware of the fact that the 0’s son was the same as her early childhood.” Defendant A’s 1 stated that the 0’s son was the president of the AE region, and that the 0’s son was the same as her early childhood.” Of Defendant A’s USB files, the 1364-136 pages were stored as “AF” [Defendant A’s suspect interrogation protocol against Defendant A, the 1364-136 pages of the investigation record]

③ Although it is well aware of which election campaign was actually conducted by M, M made a statement that it was processed by joining 0 upon receiving a demand from Defendant A to the effect that “the payment of an election campaign worker’s salary was made instead of an election campaign worker’s salary (M’s first written protocol of statement by the first prosecutor’s office and investigation record No. 175, 176 pages).

2) Regarding the payment of false information and benefits to S staff

① In light of the statements, etc. in the first prosecutor’s statement as follows, zero is recognized to have received money as salary by being falsely listed as a staff member in S.

Although S received benefits as a management director from March 201 to December 2013, 2011, there is no actual service.

② From the local election of Defendant A in 2010, Defendant A carried out an election campaign for Defendant A for the election of Defendant A, and received expenses incurred in the said election process in the form of benefits through S. The amount of money in the attached Form Nos. 12, 25, 31, 33, 35, and 38 (hereinafter referred to as “U payment”) received from Defendant B is the money that Defendant B should receive from Defendant B, due to the lack of the circumstances of S.

② Meanwhile, 0 stated that, after the above prosecutor’s statement, 0 was reversed, Defendant A was not known at the time of S employment, Defendant A was not present at the time of S employment, and S was actually engaged in sales promotional activities, and U’s V president, husband and wife, and was flicking with golf, and was paid as money. Such testimony is difficult to believe in light of the following circumstances.

0 The defendant Ado Do Do Do Do Do Do Do Do Do Do Do 's election campaign.

④ 0 Before preparing the first written statement of prosecutorial office, 2) written the written statement recognizing the facts charged of the instant case, and there is no clear explanation as to why such written statement was prepared.

③ Since the first prosecutorial investigation, 00 had taken place with B, the reason for S employment. The position to deny was changed to the purport that, in fact, if she had worked in S for a long time, it is not reasonable to have known that she was aware of the company’s employment circumstances. At the time of the prosecutorial investigation, Defendant B stated that U portion was paid by the above V, etc., the payment of the benefits that she should pay by means of direct payment to U (as of the investigation record No. 1161). Defendant B and 0 were not specifically stated on the sales of 0 business, and this was not the year-end settlement for the benefits that she received.

③ At the recommendation of Defendant A, S received a partial subcontract from the AI company and the “AJ company” that executes apartment construction in L market. In the absence of such recommendation, S appears to have not been able to receive the subcontract (Witness W and X testimony). Accordingly, Defendant B, as a result, entered Defendant A’s election campaign in his company for the convenience of his business, etc., 0 which is virtually unfavorable to Defendant A, and made a payment in the name of wages.

3) Regarding false registration of Q staff and payment of salaries

① From the first prosecutor’s investigation, M received a request from Defendant A for payment of benefits for an election campaign instead of the O’s payment, and stated that the payment of benefits was made from February 12, 2014 to June 30, 2014 (No. 173 through 176 of the Investigation Records). From the first prosecutor’s investigation of the 0th prosecutor’s office conducted after the investigation of M, Defendant A knew of the fact that the 0th prosecutor’s office did not receive any false benefits any more than 0, and stated that Defendant A was sent to the office of the apartment construction and notified Defendant A of the personal contact number of M (No. 574 of the Investigation Records). Although Defendant A denied the payment of false benefits, Defendant A stated that M was employed by 0 and made a statement that he was employed by 0 (No. 1379 of the Investigation Records).

② At the investigation stage, M consistently stated that it does not have any fact to work in this company. In addition, at the first prosecutorial statement, M only stated that Q did not work in Q, and that it did not work in the first prosecutorial statement, and that it did not work in the election campaign of Defendant A while present at this court as a witness, but only received wages, and that it was waiting for M to engage in the business. In relation to the instant PP district apartment construction project, the sales order was notified on October 23, 2014, and the approval of the tenant recruitment was made on October 30, 2014, and as such, the sales order was not at the time when Q worked in Q, and the sales promotion order was not at the time when Q works in Q.

③ Z이 작성한 2014. 1. 21.자 업무일지에 따르면, '이씨- 입사처리확인'이라고 기재되어 있고, 2014. 1. 22. N에서 0에게 900만 원을 송금하였는데, 0은 자신이 S의 부도로 S에서 미처 받지 못한 3개월 동안의 월급 900만 원을 M가 대신 챙겨준 것이라고 진술하였다(0에 대한 제1회 검찰 진술조서, 수사기록 제586, 587쪽). 앞서 살펴본 바와 같이 0이 Q에 직원으로 등재된 시점은 아파트 분양홍보시기가 아니었고, 실제 이 구체적인 업무를 수행하지도 않았는데, 입사하자마자 3개월 동안의 월급을 지급받은 것은 이례적인바, 900만 원을 지급받은 경위에 관한 위 0의 설명에 대한 신빙성이 높다. ④ N의 관리이사인 Z 역시 수사기관과 이 법정에 이르기까지 일관되게 0이 실제 Q에서 근무한 사실이 없다고 진술하고 있으며, Z과 이 서로 주고받은 문자메시지에 따르면 이 2014. 7. 10. 0에게 "회장님 지시로 7월 1일부로 부득이 퇴사처리하오니 양해바랍니다"라고 송신하고, 이에 대하여 0이 Z에게 "네~~ 감사합니다^^ 그동안 감사했습니다"라고 회신하였다. 그리고 0이 퇴사한 이후인 2014. 9. 5. 0이 Z에게 "추석 떡을 보내요~ 행복한 명절 되세요"라는 내용의 메시지를 보낸다(수사보고 순번 54). 앞서 본 증거들에 더하여 이러한 문자메시지 내용을 보더라도, 0의 태도는 실제 근무를 하던 도중 회사에서 퇴사를 통보받았다기보다는 M의 배려로 선거운동을 하며 월급을 받았다고 보는 것이 상당하다.

C. Judgment on misapprehension of legal principles

1) Relevant legal principles

Political funds prohibited by the Political Funds Act mean all the money, etc. provided to persons who engage in political activities for political activities (see, e.g., Supreme Court Decision 2013Do9866, Jun. 26, 2014). Whether the money and valuables provided or received are political funds or not depends on whether such money and valuables are provided for political activities. However, political activities refer to the activities of exercising a strike and power surrounding the acquisition and maintenance of power (see, e.g., Supreme Court Decision 2006Do1623, Dec. 22, 2006).

2) Determination

In light of the following facts, i.e., ① 00 local election for the 5th presidential election for the 2010 presidential election for the 5th presidential election and the 6th presidential election for the 2014 presidential election for the 6th presidential election for the 2014 presidential election for the 5th presidential election for the 2010 presidential election for the 6th presidential election for the 196th presidential election for the 201 presidential election for the 5th presidential election for the 2014 presidential election for the 5th presidential election for the 5th presidential election for the 2014 presidential election for the 5th presidential election for the 5th presidential election for

Therefore, the defendant B and his defense counsel's assertion on this part is without merit.

Application of Statutes

1. Article applicable to criminal facts;

(a) Defendant A: Article 130 of the Criminal Act (a) and the main sentence of Article 45(1) of the Political Funds Act (a point of illegal acceptance or acceptance of political funds)

(b) Defendant B: The main sentence of Article 45(1) of the Political Funds Act

1. Formal concurrence (Defendant A);

Articles 40 and 50 of the Criminal Act / [Article 40 and 50 of the Criminal Act / [Article 1-1 (A) 3 of the Trademark Act and between the crimes of acceptance of bribe and the crimes of violation of the Political Funds Act, punishment provided for

1. Selection of punishment;

Each Imprisonment Selection

1. Handling concurrent crimes (Defendant A);

The latter part of Article 37 and the first sentence of Article 39 (1) of the Criminal Act

1. Aggravation for concurrent crimes (Defendant A);

Articles 37 (former part), 38 (1) 2, and 50 of the Criminal Act

1. Suspension of execution (Defendant B);

Article 62(1) of the Criminal Act

1. Collection (Defendant A);

Article 134 of the Criminal Act, Article 45(3) of the Political Funds Act

1. Reasons for sentencing under Article 334 (1) of the Criminal Procedure Act (Defendant A);

1. Defendant A

(a) Scope of applicable sentences under law: Imprisonment with labor for a period from one month to seven years, and collection of penalty;

(b) Scope of recommendations on the sentencing criteria: The sentencing criteria shall not apply. Determination of sentence: Imprisonment with prison labor for a period of two years and six months and additional collection;

The Defendant is a member of the National Assembly or a member of the L market, who is a member of the political party who has been leading to a large number of interests due to the Defendant’s decision-making, and is a person who has a significant impact on the entire citizens of Luss. Nevertheless, the Defendant, as seen above, destroyed the public’s general trust in relation to the fairness of election and democracy and the rule of law by receiving a large amount of illegal political fund exceeding KRW 100

However, the defendant has already been finally and conclusively sentenced to a violation of the Public Official Election Act in relation to the above election, and there is any disadvantage that the defendant cannot take a public office for ten years from the date of the final and conclusive judgment. And the defendant does not receive a bribe from a business person directly.

In addition, the age, character and conduct, environment, motive, means and method of the crime, circumstances after the crime, etc. of the defendant shall be determined as ordered in consideration of various sentencing conditions, etc. as shown in the argument of the case.

2. Defendant B

(a) The scope of applicable sentences under law: Imprisonment for one month to 15 years; and

(b) Scope of recommendations on the sentencing criteria: The sentencing criteria shall not apply. Determination of sentence: Six months of imprisonment and two years of suspended sentence.

The defendant granted illegal political funds to the elected public officials for a long time, and the responsibility for the crime is not easy.

However, it is not confirmed that the specific circumstance that the defendant gets a direct benefit by granting illegal political funds as above is not confirmed.

In addition, the age, character and conduct, environment, motive, means and method of the crime, circumstances after the crime, etc. of the defendant shall be determined as ordered in consideration of various sentencing conditions, etc. as shown in the argument of the case.

Parts of innocence

1. Summary of the facts charged

A. The Defendant A (hereinafter referred to as the “Defendant”) is in office in the Gyeongnam-do L market in violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (Bribery) (Bribery) (hereinafter referred to as the “Defendant”)

(1) In the second floor market room around June 2013, N Co., Ltd. received cash worth KRW 10 million in return for the provision of various convenience in the process of the project in question, as well as for the alteration of the market site located in the P zone from the representative M of N Co., Ltd. to the multi-unit housing site where apartment construction can be constructed, in addition to the alteration of the market site located in the P zone from

(2) receive 10 million won in cash from around January 2014, at the Defendant’s residence located in Gyeongnam AK, 306 Dong 1701, under the same name as that of the above paragraph (1);

(3) On April 2014, at the market room on the second floor, the Plaintiff received KRW 20 million in cash from the above M in return for various convenience in the process of construction, sale, etc. of the above apartment building, and (4) around September 2014, the Plaintiff received KRW 10 million in cash from the above M in return for convenience in the process of construction, sale, etc. of the above apartment building from the above M in return for convenience in the process of the construction, sale, etc. of the above apartment building. Accordingly, the Defendant received a bribe of KRW 50 million in total in relation to its duties.

(b) 2016Gohap754;

The defendant was asked to the effect that "AP general industrial complex development project convenience, such as approval of "AP general industrial complex", "AP industrial complex construction project", "AR", "AR pististististististististististististististististististististististist", "AO enters into a large amount of money", "AO enters a five pages", and the defendant promised to give and receive a bribe from AO by driving a dog without words, and then around May 2014, the defendant received a bribe from AK and 306 dong 1701 from the defendant's residence to the above APPistististististististististististististristististististististististististististististististististististististististististististististististististististististististististististististististististististististististististististististististististististististististististististististististististististististististististististististististististististististististististististististististististististist

2. Defendant A and his defense counsel’s assertion

A. unspecified facts charged

Of the facts charged in this case, the time of receiving money and valuables by the Defendant was not specified as around 2013, 6.0, around January 2014, around April 2014, and around September 2014. Of the facts charged in 2016Kahap754, the time of receiving money and valuables by the Defendant was not specified as around May 2014. In particular, even though the time of receiving money and valuables by the Defendant was clearly possible based on M’s statement, the time of receiving money and valuables by the Defendant was unclear and infringed upon the Defendant’s right to defense by filing a public prosecution.

B. Absence of substantive relations

1) “2016 Gohap638”

On April 2014, the Defendant did not receive money from M in addition to immediately returning KRW 20,000,000 between M in a market room.

2) “2016Gohap754”

Around May 2014, the Defendant did not demand AO to accept a bribe of KRW 50 million, and AO returned KRW 30 million to AO immediately upon finding out that it was at its own house, and thus did not receive money with the intention to accept a bribe.

3. Determination

A. Judgment on the unspecified argument in the facts charged

1) Relevant legal principles

The purport of Article 254(4) of the Criminal Procedure Act that stipulates the date, time, place, and method of a crime in the statement of facts charged is to limit the scope of the trial against the court and facilitate the exercise of the defense right by specifying the scope of the defense against the defendant. Thus, considering the nature of the crime prosecuted, it is sufficient to specify the facts causing the public prosecution to the extent that it can be distinguished from other facts (see Supreme Court Decision 99Do310, Jul. 13, 2001).

2) Determination

In light of the aforementioned facts charged, the Defendant’s receipt of money and valuables from M and B around June 2013, around January 2014, around April 2014, around September 2014, around September 2014, and around May 2014, there is room to further specify the date and time of the crime through other objective materials, such as M’s statement and the details of cash withdrawal transactions, including M’s entry and departure of vehicles, and Y. However, each of the above facts charged cannot be deemed to have been unspecified on the ground that it is possible for the Defendant to conceal the date and place of the crime in the instant facts charged by more concreteizing the date and place of the crime in the instant facts charged, and thus, it is difficult to deem that there is a special obstacle to the Defendant’s exercise of his right to defense.

Therefore, the defendant and his defense counsel cannot accept this part of the argument.

B. Judgment on the non-existence of substantive relations

1) Relevant legal principles

A) In a case where the issue is whether to receive or receive money is the issue, the Defendant’s statement that was designated as the recipient of the money denies the receipt of the money, and there is no objective evidence, such as financial data to support this, the admissibility of evidence is required, and there is credibility to exclude a reasonable doubt. In determining credibility, there is a need to also examine whether there is a concern about the reasonableness, objective reasonableness, consistency before and after the statement itself, as well as his human nature, in particular, if there is a suspicion of a crime committed against him, and there is a possibility that the investigation may be initiated, or if there is a possibility that the evidence of the statement may be conducted, and if there is a possibility that the statement might not be denied, there is a possibility that the statement would affect the statement to escape from the imminent place, even if the evidence of the statement might not be denied (see, e.g., Supreme Court Decisions 2008Do8137, Jan. 15, 2009; 201Do4187, Apr. 27, 2018).

B) Since the statement of a money or valuables donor or a defendant may contain any falsity, exaggeration, distortion, or error, a fact-finding judge in charge of a criminal trial shall endeavor to find out the truth that excludes false, exaggerated, distortion, or mistake among the statements that are mutually contradictory and contradictory between the money or valuables donor and the defendant, and to ascertain the substance of the case by combining the truth. Without such efforts, the credibility of some of the statements made by the money or valuables donor is recognized. If the statements that correspond to the facts charged are reliable and the defendant's assertion that are inconsistent with this is entirely rejected, it is difficult to accept that the part of the defendant's assertion that is partially reliable in the statement of the defendant, and that the conclusion therefrom is based on a sound argument (see, e.g., Supreme Court Decisions 2010Do1487, Apr. 28, 2011; 2011Do6168, May 21, 2013).

C) As to whether a person’s statement can be trusted on various factual relations, including the provision of money, in accordance with the above criteria, in the event that the newness of the part of the statement is rejected due to the existence of objective circumstances, etc., which make it impossible to believe the considerable part of the statement as it is, the credibility of the statement should be deemed as a whole. Thus, even if the remaining part of the statement concerning the provision of money was not revealed directly, it should not be permitted to recognize the remaining part of the statement without permission on the ground of the person’s statement, in principle, even though there were no objective circumstances, etc. which make it difficult to believe that the remaining part of the

Unlike the part of the statement that rejected credibility, there exist special circumstances to resolve reasonable doubts, such as where only this part of the statement is sufficiently presented to the extent that the grounds for credibility can be satisfied, and where the statement is sufficiently supported by other evidence that can reinforce the said statement (see, e.g., Supreme Court Decisions 2008Do8137, Jan. 15, 2009; 2010Do9633, Nov. 11, 2010).

D) Criminal facts in a criminal trial should be established based on strict evidence with probative value, which makes a judge not to have any reasonable doubt. Thus, in a case where the prosecutor’s proof does not sufficiently reach the extent that the defendant’s assertion or defense is inconsistent or unreasonable, the interests of the defendant should be determined even if there are suspicions of guilt, such as the defendant’s assertion or defense is inconsistent or unreasonable. In addition, the subject of such strict proof includes all specific criminal facts as stated in the indictment. In particular, since the date and place of a crime specified in the facts charged are mainly subject to the defendant’s defense, it should be acknowledged through strict proof, and it should not be acknowledged that there is proof of criminal facts on the grounds that there is a probable probability that the crime was committed at other time and place (see, e.g., Supreme Court Decisions 2010Do1628, May 13, 2011; 2012Do231, Jun. 28, 2012).

2) Determination as to the violation of special circumstances in 2016 high-priced638

A) On June 10, 2016, M: (a) under the first prosecutorial investigation on the case of acceptance of bribe against the Defendant on June 10, 2013, M reported KRW 10 million to the Defendant in cash at the L viewing Market room; (b) on January 27, 2014, M reported KRW 10 million to the Defendant’s office around that time; (c) on April 3, 2014, after finding out in cash the amount of KRW 10 million, it sent the Defendant’s office; and (d) on May 3, 2014, after finding in the L viewing Market room, it opened the Defendant’s book and put the envelope containing KRW 20 million on the Defendant’s book; and (d) thereafter, the Defendant requested the Defendant to return money after receiving contact with the Defendant’s visa, and (d) the Defendant’s statement that was adopted by the court around June 4, 2014 as follows: (e) the Defendant requested KRW 10 million to present.

① Examining the progress of the development project in the P District where M was in progress, on October 17, 2013, the development plan was amended from the market site to the multi-family housing site, and on February 5, 2014, the application for approval of the project plan was filed in Q viewing operated by M., and on April 14, 2014, the said project plan was approved from the L City Building Division, and on October 23, 2014, the result of the evaluation was notified, and as the resident’s house announcement was approved, M may be motiveed to deliver a bribe to the Defendant for approval of the said project (the investigation report, Nos. 26, 27, 29 and each of the above investigation report attached thereto).

② With respect to the money delivered by M to the Defendant in the prosecution investigation, the Z deposited KRW 10 million from the Agricultural Cooperative Account in the name of N on June 18, 2013 to the AT account, and deposited KRW 5 million from the said AT account to the AT bank account in cash. ② On January 27, 2014, the Z deposited KRW 30 million in cash from the N bank account in the name of N on April 11, 2014, and deposited KRW 20 million in the sum from three of the agricultural branch offices located in the NA located in the city on April 11, 2014, and delivered it to M&. ④ on September 5, 2014, the NA statement was made by withdrawing KRW 5 million from the N bank account in the name of N to the MA bank account in the name of MA and delivering it to MA (the statement as to the No. 46 and the statement as to the prosecution report).

③ M has a record of visiting L viewing 34 times from May 2013 to December 2014 (the No. 49 of the Investigation Report and the attached data of the Investigation Report).

④ At an investigative agency and this court, M was present at the Defendant’s office at around the time of the life expectancy, M was found to have been found to have been located in the Defendant’s office. On one month during which L viewing was made, Y stated that M was occupied near the AU University in 2014 (Witness’s testimony).

B) Meanwhile, ① from this court to June 18, 2013, “Y” received funds from the Defendant to the Defendant’s account by transfer from 2, etc., in addition to the withdrawal of KRW 5 million from this court, there were many days of withdrawal in cash. When M visited L viewing, M parked in the viewing parking lot and testified that M did not have any memory who did not get M in the vicinity of the viewing wedding hall. ② The prosecutorial statement in this court delivered N and Q’s cash withdrawal to M. The contents of the prosecutorial statement in this court were sent to M, and among them, the funds of the Defendant as a bribe are only specified by M., the direct evidence on the part that M paid each of the above money to the Defendant is only M. As such, in order to find the Defendant guilty of violating the above Aggravated Punishment Act (Bribery), there should be a reasonable doubt that M is credibility in the Defendant’s statement.

C) However, considering all the following circumstances revealed by the records of this case, i.e., (i) the modification of the contents of the statement, (ii) the specificity of the time and place for delivering money and valuables, (iii) the absence of profit or convenience in providing material evidence, (iv) the inconsistency in the circumstances in which the statement to provide money and valuables was not submitted, and (v) the motive of the statement to provide money and valuables, it is difficult to believe that the part of the statement to which the payment of each cash was made at the time of the above crime among M’s statements and at the place of the above crime is difficult. In short, in light of the legal principles as seen earlier, the statement to provide money due to M’s payment of cash does not constitute credibility to the extent that it is excluded from a reasonable doubt. Ultimately, in light of the above legal principles, the remaining evidence submitted by the prosecution alone is insufficient to acknowledge the facts charged without any reasonable doubt, and there is no other evidence to prove it otherwise.

① On June 2, 2016, M, such as changes in and contradictions in the statement, made a statement to the prosecutor’s office on June 2, 2016 that “A defendant was refused to make a statement.” However, following the reversal of the statement at the time of the completion of the investigation, he/she respectively delivered KRW 10 million at the defendant’s office before the date of the investigation in 2013, and at the limited-type restaurant for the same year, he/she received KRW 20 million from the defendant’s office before the date of the investigation in 2013, and returned the statement to the prosecutor, and thereafter, he/she did not meet the defendant.” (No. 3 of the defendant’s defense counsel submitted by the defendant A; hereinafter referred to as “Evidence 0”).

② On June 10, 2016, 2016, M, as indicated in the above paragraph (a), stated that the Defendant gave a total of KRW 50 million to the Defendant as stated in the first written statement and the first written prosecutorial protocol. It is difficult to conclude that the Defendant returned KRW 20 million. However, in relation to the first written statement, M, even after receiving a return of KRW 20 million, did not return the said KRW 20 million to the Defendant again. However, from the first written statement, after receiving a return of KRW 10 million from the prosecution’s first written statement, M returned the said KRW 20 million to the prosecution’s office’s first written statement, and prepared and delivered the said KRW 10 million after receiving contact with the Defendant several months, and then refused to give a bribe, it is considerably less than the first written statement that the Defendant again received a bribe but did not return the said KRW 20 million to the prosecution’s office’s first written statement. This is the same in particular, even if the latter did not have actively rejected the delivery of the bribe.

③ In the investigation into embezzlement cases on June 2, 2016, M issued KRW 20 million to the Defendant on the same day, and subsequently returned the said money on the same day. However, M consistently stated that, although the Defendant did not know of the specific reasons for returning the said money, M’s return of the said money to the public. However, if M’s above statement was true, M did not refuse it when M gave a bribe in the amount of KRW 10 million and received money, it would not be easily accepted that M returned money to the effect that it was “the Defendant did not know of why he returned the said money.” If M’s statement was true, it would not be easily accepted that M returned money in the event that M gave more money than KRW 10 million.

Q M initially mentioned in the first prosecutorial statement about the delivery of a bribe around June 2013. The date and time of the delivery of the said bribe was specified in the report of cash withdrawal data (on June 18, 2013). While M made a statement that he/she paid the said money to L viewing and visited his/her own car driven by Y, M did not confirm the record that he/she (M) visited L viewing, it was not confirmed that he/she could have returned to a viewing, and that he/she could have returned to a viewing ceremony after reconcing it. However, Y stated that he/she was set off in the viewing parking lot when visiting L viewing and that he/she did not have any memory that was set back in the surrounding area.

② Around September 2014, which was followed by several months after the time and place for delivering money and valuables, the Defendant demanded KRW 10 million by telephone, and the Defendant delivered the money and valuables to AM which he had sacrifies with Sacrifies. However, at the time, the Defendant was under investigation in violation of the Public Official Election Act, and the Defendant was already under investigation in violation of the Public Official Election Act, and was already under investigation by M on a bribe. Under such circumstances, it is no longer accepted that the Defendant was under investigation by the prosecution, and that the Defendant was under investigation by M was under one time for a bribe. In such a situation, it is no longer understood that the Defendant was under investigation by the prosecution.

(3) No benefit or convenience provision shall exist.

O M state that a bribe was given in each of the above periods to facilitate the progress of the P District Urban Development Project. However, in relation to an urban development project promoted by M in L City, there is no specific evidence to prove that there was an order given to public officials belonging to LA to exercise any influence or smoothly proceed with M’s business in the process of the amendment of the development plan from the market site to the multi-family housing site on April 14, 2014, and approval of the project plan on April 14, 2014.

② Also, the ZE stated that the Defendant refused the offering of 5 million won around October 2014 with respect to the malodor issue of the sewage terminal treatment facility near the site of apartment construction in the P zone. The Defendant approved the above business plan of M (the 10th floor) and permitted the disposal costs for the malodor in the surrounding sewage terminal treatment site in accordance with the principle of beneficiary burden (the witness M) under the condition that the project implementer bears the burden (the witness M). According to the M’s statement, the Defendant demanded M to take a bribe of KRW 10 million by telephone around September 2014. According to the ZE’s statement, it is difficult to readily understand this plan. Rather, the amendment of the Urban Planning Committee exercised its substantial authority, and M&T’s testimony to the extent that it was either embezzled to or distributed to the above members of the Urban Planning Committee, and it is also confirmed that M&M’s statement was made to the extent that it was made as a witness to the extent that it was made available to the above members.

However, M’s materials related to the date and time of the offering of the above bribe (MM, etc.) were not presented as evidence.

⑤ The contradiction in the process of the statement to grant money and valuables was denied the fact that a bribe was given to the Defendant at the time when the Defendant was investigated on the charge of embezzlement on June 2, 2016, but the first prosecutorial investigation denied the fact that the Defendant had taken a bribe. As to the process of the search and seizure of M’s office, etc., the name of the public official and the relevant market owner were found in the process of the search and seizure of M’s office, etc., and the following was revealed: (a) the fact of false employee registration and payment of wages, card use details, text messages, etc. were revealed when investigating into the car carriage in the election campaign worker’s office; and (b) the statement was made in order to seek the wife. However, the above statement made by M is somewhat unreasonable in light of the contents of the Z’s statement and the statement made by M.

0 In the prosecution investigation on the charge of embezzlement on June 2, 2016, the Z stated that M gave money and valuables to the Defendant in addition to the Defendant’s statement to the effect that M will give five million won to the Defendant, around October 2014, M would not be aware of whether M would give money and valuables to the Defendant.

② Also, it is insufficient to view that M is of high objective value in view of its content as objective evidence. The above domain only includes the name of building and AV director, the director of urban construction bureau AW, AX, AY, etc., and the name of 'market Construction'. Even if there are numbers on each side of the above domain AW, etc., and no number is written on any side of 'market Construction'. M in this court stated that the above domain is presumed to be a part of the document prepared by the service company and the name of the service company. According to the above M's statement and the above domain, M was related to giving a bribe to the above AW, AY, etc., but there was no additional investigation as to this part of the bribe grant charge.

③ It seems that M’s use of the card or text message was related to the grant of the instant bribe, and is not meaningful.

(6) The motive for offering of a bribe

In light of the following circumstances, which can be seen by the record, the voluntariness of M's statement is not denied, but the defendant's motive for the statement of offering a bribe is still in the situation.

(2) In the embezzlement case of M. 1,363,470 million won, the prosecution held that ① 758 billion won paid to the company A, ② 247,800,000 won paid to its executives and employees; ③ 84,670,000 won paid to the company B as contract deposit; ⑤ 200,000 won paid to the Health Insurance Corporation; and ② 48,282,00,000 won paid to the company B's wife B's 9,710,000 won in cash; ② 26,000,000 won in a confirmation document of M. 1,610,00 won in cash; ③ 2,000,000 won in a confirmation document of M. 2,71,000 won in cash with the public prosecutor's signature and seal affixed to each of the above 96,000,000 won in a confirmation document of M. 27,016.

② With respect to 48,2820,000 won of the benefits paid to the wife B of M, if BB actually worked in N and Q, and if B did not actually work in the above company, the said suspected embezzlement would be co-offenders. If BB did not actually work in the above company, the said benefits paid to BB would be recognized as embezzlement. Nevertheless, no investigation was conducted against B in the course of the embezzlement investigation against M. 3 M. The initial suspected amount of embezzlement was set at KRW 00,000,000,000 as in the above paragraph (1). The prosecution investigator was fleded at the time of executing the search and seizure warrant for the above suspected embezzlement, and M was showing the circumstances that destroyed evidence, such as dumping his cell phone to the sea. However, not only the investigation process regarding the above suspected embezzlement, but also the request for detention against M in addition to the instant additional bribe granted.

Q M is being investigated as a violation of the Punishment of Tax Evaders Act (No. 31) in relation to the above embezzlement charge by 2017 type No. 12785, the office of the territory of the Republic of Korea, and the time when Q M was prosecuted as a charge of embezzlement against M is September 28, 2016, and is still not prosecuted as a charge of violation of the Punishment of Tax Evaders Act.

3) Determination on "2016 Gohap754"

A) AO stated that the Defendant received a bribe of KRW 50 million from the Defendant’s demand for a bribe, prepared to prepare for a bribe of KRW 30 million, and delivered a bribe at the Defendant’s home. The Defendant recognized the fact at the Defendant’s home, but claimed that it was found and returned to be found. Therefore, in order to find the Defendant guilty of the facts charged that the Defendant demanded a bribe to AO and received the said KRW 30 million from the intent to accept the bribe, there should be credibility to exclude a reasonable doubt in the AO’s statement.

B) However, in full view of all the following circumstances admitted by the evidence duly admitted by this court, there are circumstances where the Defendant demanded A0 to provide KRW 50 million, and the Defendant’s statement that 30 million has been located in the Defendant’s office is difficult to believe as it is. Therefore, the offer of a bribe by AO is not reliable to the extent that it is beyond a reasonable doubt. Ultimately, in light of the legal principles as seen earlier, the offer of a bribe by AO does not constitute a proof of the above facts charged, and the remainder of the evidence submitted by the prosecution alone is insufficient to acknowledge the above facts charged without a reasonable doubt, and there is no other evidence to acknowledge it.

① AO appears in this Court as a witness and received the phone number (BG) which is no longer known to a police officer on May 2014, 2014, around the day of the offering of a bribe. AO stated that a person who called was the Defendant and was only the Defendant after the phone call. However, it is not confirmed that A0 was phoneed by the Defendant and the Defendant on the said temporary and regular basis and the fact that the phone was received from the Defendant and the Defendant’s commuting (the No. 96,98, and each of the above investigation reports appended thereto).

② AO proposed that the defendant will give a bribe of KRW 50 million in its first place with "five pages?" but in fact, it was stated that the defendant did not give any explanation to the defendant, who received less than the original amount of KRW 30 million, while delivering 30 million to the defendant (the witness AO's testimony). BFH was present at the Changwon District Court on January 21, 2016 in order to facilitate the progress of AP general industrial complex projects and stated that he/she did not return the above money to the defendant as a witness, and that he/she did not return it again to the defendant for 1 year and 2 years of suspension of execution. The above judgment became final and conclusive at that time (the first judgment was delivered by Changwon District Court, but 300,000,000,000 won was returned to the defendant as a witness.

(4) (O) testified that the Defendant’s wife returned money as it is on its own package. On April 2014, the Defendant discovered, advanced and returned money KRW 20 million to M at his own discretion in the market room and around 20 million. From then on May 2014, the Defendant’s wife was later about one month.

It is also difficult to accept that the Defendant returned the said money as it is immediately after the election is completed, even if the Defendant received KRW 30 million from A0 as the will of a bribe.

4. Conclusion

Therefore, since the facts charged by each special law against Defendant A constitute a case where there is no proof of a crime, the judgment of innocence is rendered pursuant to the latter part of Article 325 of the Criminal Procedure Act, and the summary of this judgment is publicly announced pursuant to Article 58(2) of the Criminal Act.

The senior judge of the presiding judge;

Judge Muma decoration

Judges Park Jae-in

1) In the case below, the "2016 Gohap638 case" is omitted, and it is simply an investigation record.

2) The written statement written by 0 was not submitted as evidence.

3) hereinafter referred to as “specific family law”.

4) On December 24, 2013, a real estate sales contract entered into with BF on December 24, 2013, “the sales amount is KRW 81,39.60,000,000,000,0000 and

Although it is called, "the person received 1.39 billion won as the sale price" on December 24, 2013, that "the person received 1.39 billion won as the sale price" submitted a certificate of BF.

M is because M paid in cash the difference of KRW 490,000,000,000, and it is not easy to believe, but the prosecution recognized M's assertion.

I seem to appear.