2016,646 A. Bribery

B. Acceptance of bribe

(c) Violation of the Act on the Aggravated Punishment, etc. of Specific Crimes;

1. A.

2.2.B

3.C.

The highest child, the best child, and the public trial;

Law Firm D LLC, Attorneys E, F, and G (Defendant A)

Law Firm H LLC, Attorneys I and J (Defendant B)

Law Firm K LLC, Attorneys L, M and N (Defendant C)

Law Firm P, Q and R (Defendant C)

June 30, 2017

[Defendant A]

A defendant shall be punished by imprisonment for four months.

However, the execution of the above punishment shall be suspended for one year from the date this judgment becomes final and conclusive.

[Defendant B]

A defendant shall be punished by imprisonment for not less than eight months and by a fine not exceeding eleven thousand won.

except that the execution of the above imprisonment shall be suspended for two years from the date this judgment becomes final and conclusive.

When the defendant fails to pay the above fine, the defendant shall be confined in a workhouse for the period converted into one day.

5,295,00 won shall be additionally collected from the defendant.

The amount equivalent to the above fine and the additional collection charge shall be ordered to be paid provisionally.

[Defendant C]

Defendant shall be punished by a fine of KRW 10,000,000.

When the defendant fails to pay the above fine, the defendant shall be confined in a workhouse for the period converted into one day.

12,000,000 won shall be additionally collected from the defendant.

The amount equivalent to the above fine and the additional collection charge shall be ordered to be paid provisionally.

Criminal facts

On August 13, 2015, Defendant A was sentenced to a suspended sentence of two years in October 2015 due to a violation of the Act on the Aggravated Punishment, etc. of Specific Crimes, etc. (Good Offices) by the Seoul High Court on August 21, 2015, and the said judgment became final and conclusive on August 21, 2015.

Defendant B transferred from the Ministry of Health and Social Affairs to the National Tax Service on May 1, 1995, and was promoted to the Grade V tax official from February 2, 2012 to December 2012, 2014, and served as the Grade IV corporate tax manager in the Seoul Regional Tax Office from January 2, 2015 to February 17, 2015, and retired from office after serving as the Grade IV corporate tax manager in the Seoul Regional Tax Office, from January 2015 to February 17, 2015, while serving as the Grade V corporate tax official in the Seoul Regional Tax Office from July 12, 2013 to September 29, 2013.

Defendant C begins with duties as tax officials from February 1, 1986 to June 2012, and served in the National Tax Service AB office from February 2, 2011 to June 201, and from July 2012 to March 2015, Defendant C served in the Seoul Regional Tax Office AB office from July 2012 to March 2015 and served as the head of AC Tax Administration support division from March 2015.

1. Defendant A

On August 21, 2013, after the Defendant was appointed as a tax agent for the tax investigation from the Z, the Defendant provided cash of KRW 2,000,000 with a solicitation to the effect that he would request the above tax investigation for the Z to be well treated against B from the Japanese-only restaurant in Seocho-gu Seoul Metropolitan Government on August 19, 2013. On the same day, the Defendant provided the amount of entertainment drinking water in the "AG" of the entertainment tavern in Seocho-gu Seoul Metropolitan Government at night.

On September 11, 2013, the Defendant continued to offer entertainment by paying for cash 3,00,000 won for meals in AE, and paying for an amount of not less than 590,000 won for meals in AE, along with a solicitation from AE to the effect that the above tax investigation should be completed well.

As a result, the Defendant provided a bribe equivalent to the amount of KRW 5,295,00 in total and amount of meals, liquor payments, etc. to the duties of tax officials B.

2. Defendant B

On August 21, 2013, at around 19:00, the Defendant received a request from A to the effect that he would well process the tax investigation of Z from AE as specified in paragraph (1), and received an envelope containing KRW 2,000,000 in cash. On the same day, A had a food payment in AE pay for alcoholic beverages in AG at night.

On September 11, 2013, the Defendant continued to receive a bag containing KRW 3,00,000 in cash, along with a solicitation from AE to the effect that the said tax investigation would be completed well, and received entertainment by having A pay for meal expenses of KRW 590,000 in the AE and the amount of unpaid liquor in the AG.

Accordingly, the Defendant received, as a tax official, a bribe equivalent to the amount of KRW 5,295,00 in total and amount of meals, liquor payments, etc. from A twice in connection with his duties.1)

3. Defendant C.

In around 2005, the Defendant worked as a corporate leader in X-Tax Office, and became friendly with A after being aware of in the corporate agent training program.

On February 22, 2011, the Defendant introduced a tax official in charge of tax investigation in handling A's tax affairs at an unsound place, or received money and valuables equivalent to the same amount from A to AH's national bank account (AI) in return for providing good offices, such as requesting the relevant tax official to deal with a case in which A entrusts tax agent services.

In addition, from the above date to February 5, 2015, the Defendant received money and valuables of KRW 12,000,000 in return for arranging matters belonging to public officials’ duties from A seven times, such as the list of crimes in attached Form A.

Summary of Evidence

[Judgment of the court below]

1. Each legal statement of the defendant A and B

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

1. Statement in the third trial record that the witness gave cash and give entertainment to the defendant B at the date and place in the ruling of the witness A (limited to the defendant B)

1. Statement made to AK by the police;

1. Details of card usage and text, photograph, photograph, relevant part of account transaction, report on the completion of personal business, report on the completion of investigation by individual business operator, copy of document verifying the completion of investigation, copy of document verifying Z preparation, copy of document verifying Z preparation, copy of notification of the results of tax investigation, copy of report on the progress of tax investigation (scheduled completion), copy of notification of extension of the period of tax investigation, copy of application for extension of the period of tax investigation, receipt of application for extension of tax investigation, field of taxpayer's right, etc. and copy of document verifying tax investigation, copy

1. Previous convictions in judgment (defendant A): Criminal records and court rulings;

【No. 3 Facts at the Time of Sale】

1. Defendant C’s partial statement

1. Statement A of a witness in the second protocol of trial;

1. Each prosecutor's protocol of examination of DNA, AO, and AP;

1. Each police statement made to Q, AR, AS,T, and AU;

1. An investigation report (AV CCTV data analysis), CCTV screen, copy of passbook in the name of AR, each financial transaction details (Evidence No. 48,49), AH.A. Q Q Q, part of transaction details (Evidence No. 54), AO Bank (AW), detailed inquiry into transactions, AX civil petition receipt, copy of on-site verification statement, copy of the on-site verification statement, copy of the business operator’s basic status (AX), and copy of notification of the results of tax evasion reporting processing (Evidence 65 through 69);

Application of Statutes

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

A. Defendant A: Articles 133(1) and 129(1) of the Criminal Act (generally, the choice of imprisonment)

B. Defendant B: Article 129(1) of the Criminal Act (generally, imprisonment with prison labor and fines pursuant to Article 2(2) of the Act on the Aggravated Punishment, etc. of Specific Crimes)

C. Defendant C: Article 3 of the Act on the Aggravated Punishment, etc. of Specific Crimes (Overallly, Selection of Fines)

1. Handling concurrent crimes;

Defendant A: the latter part of Article 37 and Article 39(1) of the Criminal Act

1. Suspension of execution;

Defendant A and B: Each Criminal Code Article 62(1)(The following extenuating circumstances are considered for the reasons for sentencing)

1. Detention in a workhouse;

Defendant B and C: Articles 70(1) and 69(2) of the Criminal Act

1. Additional collection:

(a) Defendant B: the latter part of Article 134 of the Criminal Act

[ Comprehensively taking account of the evidence in the above, it is reasonable to view that the amount of meals and the amount of meal expenses at AE on September 11, 2013, of the meal expenses and alcoholic beverages under paragraphs (1) and (2) of the judgment that Defendant A settled, was paid on the card, and there is no evidence that the remainder of meal expenses and alcoholic beverage payments, excluding the above amount, can be identified as follows. Therefore, the amount of bribery, which serves as the basis for calculating the amount of fine and additional collection for Defendant B, is the total sum of KRW 5295,00 won in cash + KRW 295,000 in cash + KRW 295,00 in entertainment offer amount (= KRW 590,00 in meal expenses on September 11, 2013).

B. Defendant C: The latter part of Article 13 of the Act on the Aggravated Punishment, etc. of Specific Crimes

1. Order of provisional payment;

Defendant B and C: Article 334(1) of the Criminal Procedure Act

Grounds for conviction

1. As to Defendant B

A. Summary of the defendant's lawsuit

As stated in the Defendant’s holding, it was true that A received entertainment, such as meal and liquor, by being delivered a total of five million won in cash, as stated in the judgment of the Defendant, but around that time, at around that time, A paid cash to the effect that A would use it as money by first making a visit and making a recommendation to operate a partnership after having contacted and retired, and thus, there is no relationship between the duties of tax investigation with regard to Z, since A did not have a quid pro quo.

B. Relevant legal principles

1) Whether a public official’s profit constitutes a bribe in a quid pro quo relationship with his/her official duty, relationship with the provider of the benefit, whether there exists a special relationship between the parties, and the circumstances and timing of receiving the benefit. In light of the fact that the legal interest of the bribery is the fairness of performing his/her duty and the trust of the society, the issue of whether a public official’s receiving the benefit is suspected of being fair in performing his/her duty from the general public should also be the basis for determining the nature of the bribery. The duties mentioned in the crime of bribery include not only the duties under the legal control of the public official, but also the acts closely related to his/her duties, or the acts of performing duties that are actually involved in custom or customs (see Supreme Court Decision 2001Do970, Mar. 15, 2002).

2) In a case where a public official received money, valuables, or other benefits from a person who is subject to his duties, such money, valuables, or other benefits shall be repaid to him that he received from a previous public official, and, in light of the social norms, it shall not be deemed that there is no relation to his duties unless there are special circumstances, such as where it is deemed that the person merely received money from his previous public official, or where it is obviously recognized that his personal friendly relationship is due to the need for decentralization. In a case where a public official received money and valuables in relation to his duties, even if he received money and valuables in the form of private ties, such money and valuables shall be a bribe (see Supreme Court Decision 2001Do6721, Jul. 26, 2002).

C. Determination

1) In full view of the various evidence duly admitted and examined by this Court, the following facts and circumstances are revealed.

A) The Seoul regional tax office’s Y1 and 2 team conducted an individual integrated investigation into Z (the confirmation of the source of funds for Z, hereinafter referred to as “instant tax investigation”) with respect to Z from July 12, 2013 to August 20, 2013, on the suspicion that the Z, the representative director of the YAG LA, is suspected to have generated income equivalent to interest income by lending funds to the EY, the KAB World Cup, the LAL, the LAB LAC, and the LAC, the head of the team, and the head of the team, were in charge of the AJ, the AJ, the AZ, the head of the team, and the BA.

B) Around July 2013, 2013, the Z submitted to the Seoul Regional Tax Office a written confirmation that the AL representative director AM borrowed money, but all of which was paid and the interest was not paid. On August 14, 2013, an application for extension of the investigation period was filed on August 20, 2013, and the existing scheduled date for the completion of the investigation was postponed from August 20, 2013 to September 29, 2013.

C) A around July 2013, after reviewing the financial transaction information of the instant tax investigation, appointed as a tax agent of the instant tax investigation, and submitted to the Seoul Regional Tax Office explanatory materials that the Z did not have any interest income accrued from lending the money to the Bank of Korea, the Bank of Korea, and its families.

D) On the basis of the explanatory materials, such as TISD and financial transaction information received from A, which is an internal system of the National Tax Service, the AJ concluded that, after reviewing the LAJ, the LAJ suffered damage to the principal due to the default, the LAJ did not pay a separate interest to the Z, and that Z did not lend a fund to the KABTTTTT, and that there was no suspicion due to the failure to meet the taxation requirements equivalent to tax collection. The Defendant ordered the AJJ’s report to supplement the materials.

E) As above, while the tax investigation of this case is not terminated, the Z re-convens A with the fact that the tax investigation is long-term or is likely to be investigated for other suspicion, and upon inquiring of AJ of the reasons why A does not conclude the investigation, AJ seems to have no longer seen, but to require A to confirm the amount more.

In contrast to the defendant's opinion, we cannot see the defendant's position without any conditions. In the case of Magne, we see that the defendant directly talks with the defendant and talks with the taxpayer's position.

바) A는 이 사건 세무조사 이전까지 만난 적이 없는 피고인에게 전화를 하여 "Z 세무조사 건에 대하여 할 이야기가 있다. 만나서 이야기 하고 싶다"고 말해 승낙을 받은 다음, 2013. 8.경 Z에게 AJ의 말을 전하며 국세청 공무원들에게 접대 내지는 돈을 주는 방식으로 해결하는 게 좋겠다고 하면서 현금 1,000만 원을 준비해 달라고 요구하였다. 이에 Z은 판시 제2항 기재 일시에 각각 현금 1,000만 원을 A에게 건넸고, A는 판시와 같이 피고인을 두 차례 만나 돈 봉투를 건네고 향응을 제공하였다. 이와 관련하여 피고인은 검찰에서, 'A가 이 사건 세무조사의 세무대리인을 맡고 있었고 내가 조사를 담당한 팀의 팀장으로 있었기 때문에 현금을 교부한 것 같다'는 취지로 진술하였다(수사기록 4377쪽).

G) On August 21, 2013, at the time when the Defendant was divided into the instant tax investigation on August 21, 2013, A responded only to the purport that “I am well-known. I am well-known. I am again upon the Defendant on September 11, 2013 or when the instant tax investigation is concluded. In conclusion, A appears to have been the main purpose of South Korea to deliver to the Defendant for prompt termination of the instant tax investigation to the effect that I would not have any suspicion.

H) Upon completion of the instant tax investigation on September 29, 2013, Seoul Regional Tax Office concluded that 2 did not have any suspicion of omitting value-added tax, interest income tax, etc., and notified Z of the absence of the expected notified tax amount as a result of the instant tax investigation on October 1 of the same year.

2) In light of the various circumstances revealed in the above facts, especially the defendant is the head of the team in charge of the tax investigation of this case, and A is a tax accountant representing the person subject to the tax investigation of this case, and the defendant and A did not have any kind of relationship before the tax investigation of this case, and they seem to have no exchange until now after two times as stated in its holding, it is reasonable to view that the defendant's offering of money and valuables and entertainment in the judgment of the court below

2. As to Defendant C

A. Summary of the defendant's lawsuit

Since the Defendant knew from around 2005 to A, while making an investigation into the mutual name, is closely pro rata to the extent that he is closely friendly with his family, and there is no time for A to request the competent tax official to deal with the tax agency's case well, and as the extent that A requested another tax official to the effect that he is friendly with the other tax official, he did not act as an intermediary in the crime of acceptance of good offices, and did not receive money as stated in paragraph (3) in return for it.

B. Relevant legal principles

1) The crime of good offices or acceptance of money and valuables is established by 'the receipt of money and valuables' under the pretext of arranging matters belonging to the duties of a public official. The term "mediation" refers to the act of delivering the intentions of the parties to a certain matter belonging to the duties of a public official to the public official, promoting convenience, or helping the decision to be made in the direction that the parties desire by exercising influence on the duties of a public official. In this case, the duties of a public official are included in cases of legitimate duties, and there is no need to specify the contents of a public official who is the other party to good offices or duties. In addition, if a public official received money and valuables under the pretext of good offices, the crime is established regardless of what is actually specific good offices or acts of good offices. Whether there is a quid pro quo relationship between a public official's good offices or receipt of money and valuables is sufficient to comprehensively determine the contents of good offices, the relationship between a broker and a benefit provider, the situation and time of exchange of money and valuables, and in exchange with such money and valuables, the nature of good offices or other acts are indivisible (see.).

2) Meanwhile, in order to recognize the criminal intent that a person received money and valuables on the pretext that he/she mediates matters falling under the duties of a public official in the crime of brokerage and acceptance, there is a need for strict proof. However, in cases where the defendant denies the criminal intent while recognizing the fact that he/she received money and valuables, etc., it is inevitable to prove it by means of proving indirect facts that have considerable relevance with the criminal intent (see, e.g., Supreme Court Decision 2004Do7359, Jan. 28, 2005). If, in light of indirect facts, the circumstance that the money and valuables received in exchange for the act of intermediation can be deemed to have been received and received without permission, even if the defendant does not have the nature of the money and valuables in consideration of indirect facts, the criminal intent of acceptance of brokerage and acceptance shall be sufficiently recognized (see, e.g., Supreme Court Decision 2015Do180

C. Determination

1) In full view of the various evidence duly admitted and examined by this Court, the following facts and circumstances are revealed.

A) A sought a lot of advice from the Defendant related to the tax affairs, and it was difficult for A to ask the tax official in charge of the tax agency business to ask whether the Defendant knows, and to the effect that if the Defendant was aware of, it would be well talk with the tax official in charge.

B) The Defendant and A appears to have known from around 2005 to have left the country. The time when A started to remit cash at the Defendant’s request is the time when A moved the cash to the National Tax Service on February 201.

C) A around June 2012, a public official BB in charge of tax investigation of “AX”, and around that time, requested the Defendant to the effect that public officials and officials in charge of audit of the Seoul regional tax office’s V tax affairs and public officials and officials in charge of the integrated investigation of corporate tax related to “BC” would talk well about the tax investigation they left. Accordingly, the Defendant called “BB,N, and AP by calls to the Defendant,” which means that “A is a public official in charge of the integrated investigation of corporate tax related to “BC” is a public official in charge of the integrated investigation of the Seoul regional tax office. Upon the Defendant’s request, the formal expression would vary with the tax official in charge to respond in person’s friendship, but it seems that it would include more positive arguments between the taxpayer and the tax agent than simply the tax official in charge, regardless of whether the Defendant could exercise its real influence on the tax official in charge.

D) On September 27, 2012, the Defendant introduced A from AE to A, and A met separately from AP on December 2, 2013 (in the process, the time and place of promise were given in exchange for the letters at least seven times). The Defendant stated in the Prosecutor’s Office that “A was well-known because the Defendant was not a tax accountant in a tax office, while introducing A, and the Defendant was well-known as having a tax accountant in a tax office (4507 pages of investigation record).”

E) As to the reasons for remitting or delivering money as stated in its holding, A stated in this court that “it is not possible to be related to a specific case, but to send the fee, etc. to the public officials and to the public in the future, including displaying the garment that he introduced and helps them receive various kinds of help,” and also the public prosecutor stated that “in connection with the tax affairs, there were many kinds of tax offices related to the tax affairs and the relationship with the employees of the tax offices, thereby making it easier to operate the office and having been able to perform the duties well. Of the tax officials, there were many people who do not know about the tax offices, and even if you want to do so, there were many people who do not know about the tax offices.”

(수사기록 4234,4245쪽), 또한 금원을 송금하거나 교부한 경위에 관하여 이 법정에서 "내가 먼저 피고인에게 무엇이 필요한지 물으면 평소 관심을 많이 보이던 맞춤양복을 해줬으면 좋겠다고 말하여 양복대금 명목으로 송금하였다. 그러나 피고인이 아무런 말도 하지 않았는데 금원을 송금한 적은 없었다(별지 범죄일람표 순번 1, 2, 4, 5번 관련). 피고인이 AT에게 신세를 져 고마움을 표시해야 되는데 형편이 어려우니 나에게 대신 금전적으로 지원해주면 좋겠다고 하여 송금하게 되었다(같은 순번 3번 관련), 피고인과 통화를 하다가 도라지를 구입한다는 말을 듣고는 그 구입대금을 내가 선물로 송금한다고 말하였다(같은 순번 6번 관련), 피고인이 교통 정체로 저녁식사 약속시간에 늦어 함께 식사할 수 없게 되자 미안한 마음에 30만 원을 건넸다(같은 순번 7번 관련)"고 진술하고 있다.

F) A remitted to the Defendant the two-way return of KRW 2 million or KRW 3 million to the Defendant. Even in consideration of the two-party’s pro ratas, the amount needs not be specified, and even if so, there is no need to return several punishments to the Defendant during the remittance process, and transferred money and valuables to AH, Q and R’s account in the name of a third party, including AO, designated by the Defendant by using a third party account in the name of AH, Q and R. at the time of transfer from the police. A expresses to the effect that “AO believed that it was the Defendant’s birth at the time of transfer from the police (as for the crime No. 3454 of the Investigation Record), A made a false statement to the effect that “AO was the Defendant’s birth” (as for the crime No. 5 of the Attached Table No. 5 of the Criminal Act, the Defendant received the two-way return from A Q in cash instead of using the said money as the two-way payment).

2) In light of the various circumstances indicated in the above facts, particularly in light of the motive and purpose of providing money and valuables to the Defendant, the frequency and method of transfer, the amount of remittance, and the details that the Defendant practically assisted the Defendant, etc., it is reasonable to view that the Defendant received money and valuables from A has the nature of consideration as consideration for arranging matters pertaining to the duties of tax officials, such as BB,N, and AP, in whole and in a comprehensive manner, and that the Defendant received money and valuables without permission, even if not.

Reasons for sentencing

1. Defendant A

(a) Reference to the sentencing criteria;

[Determination of Types of Bribery] Class 1 (less than 30 million won) for Bribery

[Special Convicted Persons]

[Scope of Recommendation] Imprisonment from April to October (Basic Area)

(b) Determination of sentence;

The crime of this case is an act of offering cash and entertainment exceeding five million won to a tax official in charge of receiving convenience in a tax investigation case that a certified tax accountant who is obligated to contribute to performing his/her tax liability in good faith, and is an act of impairing the fairness and integrity of the taxation affairs of the National Tax Service and the trust in society.

However, there are favorable circumstances such as the fact that the Defendant, at the request of the client, led to the instant crime for the early termination of the tax investigation, the fact that the investigation agency recognizes the provision of money and valuables from the investigation agency to the court, and the fact that the first head judgment in the holding should consider equity with the case where the judgment has become final and conclusive at the same time.

In addition, considering the age, character, conduct and environment of the defendant, motive and consequence of the crime, circumstances revealed after the crime, etc., the punishment shall be determined as ordered and the execution thereof shall be suspended.

2. Defendant B

(a) Scope of applicable sentences under law: Imprisonment for one month to five years, and fine of 10,590,000 won to twenty-six thousand won; and

(b) Scope of recommendations based on the sentencing criteria;

[Determination of Punishment] Type 1 of Acceptance of Bribery (less than KRW 10 million)

[Special Convicted Persons]

[Scope of Recommendation] From April to one year (Basic Area) of imprisonment

(c) Determination of sentence;

The crime of this case is committed by a tax official who is a tax official twice more than twice by receiving cash and entertainment of five million won during the period of investigation from a certified tax accountant appointed as a tax agent in the tax investigation case in which he/she is responsible. This is not an obvious crime and criminal administration in that the fairness and unpurchase of the taxation affairs of the National Tax Service and the trust in the society have been damaged.

However, there is no evidence that the defendant did not actively demand money and valuables to A, that there is no evidence that the defendant carried out the illegal tax investigation of the number of bribes, and that the defendant has faithfully worked for eight times while holding a tax official for 27 years, such as receiving eight commendations.

In addition, considering the age, character, conduct and environment of the defendant, motive and consequence of the crime, the circumstances after the crime, etc. and various circumstances revealed in the arguments, the punishment as ordered shall be determined within the scope of recommended sentencing guidelines and the execution of the imprisonment shall be suspended.

3. Defendant C.

The crime of this case is a crime that a tax official receives money and valuables equivalent to KRW 12 million in total upon a request by a tax official who introduced a public official in charge of a tax investigation case he/she accepted by him/her from a tax accountant with a close-friendly relationship, or a request by such public official to talk well. It is a crime that may impair the fairness and adequacy of the affairs handled by a public official of the National Tax Service and the social trust

However, there are more favorable circumstances such as the fact that the defendant did not actively demand the consideration for good offices to A, there is no evidence to see that the public official in charge was seeking convenience in the handling of the case by exercising influence, and that the meaning of the case based on the money and valuables received from A can be deemed to include some of the cases, about 30 years, work as a tax official for about 30 years, and receive an official commendation on five occasions, etc.

In addition, the defendant's age, character, conduct and environment, motive and consequence of the crime, circumstances after the crime, etc. are considered, and the punishment is determined as ordered in consideration of various circumstances shown in the pleading.

The acquittal portion

1. Summary of the facts charged against Defendant A and B

A. Around August 21, 2013 and September 11, 2011 of the same year, Defendant A, as a certified tax accountant, provided a bribe equivalent to KRW 18 million in total exceeding the value of the offered bribe in relation to B’s duties by delivering cash of KRW 16 million to B to a tax official and settling the meal cost, liquor payment, etc. equivalent to KRW 2 million.

B. As described in paragraph (a) above, Defendant B received a bribe equivalent to KRW 18 million in total in excess of the value of the bribe as stated in A’s holding twice with respect to its duties as a tax official.

2. Summary of the Defendants’ statements

Defendant A stated that Defendant B provided cash of KRW 16 million for each of the bags containing KRW 8 million to Defendant B twice, and provided entertainment of KRW 2 million for each of the meal and alcoholic beverages with a total of KRW 1 million for each of KRW 1 million. However, Defendant B stated that sexual traffic was not conducted, as stated in its reasoning, although Defendant B received only KRW 5 million in cash and received a meal and alcoholic beverage entertainment.

3. Determination

A. The portion of giving and receiving cash exceeding KRW 5 million in the holding

1) In full view of the various evidence duly admitted and examined by this Court, the following facts and circumstances are revealed.

가) 피고인 A는 경찰에서 'AX'으로부터 4,150만 원을 받아 그 중 1,500만 원을 피고인 B에게 교부하였다고 진술하다가, 피고인 B에게 AX의 매출누락 규모를 줄여달라고 부탁하면서 2,000만 원을 공여하였다는 취지로 진술을 바꾸고는 다시 'Z으로부터 각 1,000만 원씩 두 번 받아 식사대금, 주류대금을 결제할 목적으로 200만 원씩 빼내 800만 원이 든 봉투를 피고인 B에게 두 차례 건넸다'고 진술을 번복하였다.

B) As examined below, Defendant A and B provided twice entertainment equivalent to KRW 1,00,00,00 for meal expenses and liquor charges calculated by Defendant A, except for KRW 5,90,000,00 for meal expenses on September 11, 2013, and each of them delivered to Defendant A and Defendant A did not intend to deliver the same as a bribe to Defendant B, but to use Defendant A appropriately within the scope of the same. In light of the fact that Defendant A used cash received from Z in accordance with its purport, it is also possible to conclude that Defendant A provided twice with entertainment equivalent to KRW 1,00,00,000 for meal expenses and liquor charges, and provided two bags to Defendant B with an envelope consisting of KRW 20,000,000 for total of KRW 8 million.

C) Defendant A had a statement from AJ to the purport that Defendant B should be aware of the same provision as Defendant B was aware of the fact that Defendant B was aware of the fact that Defendant B was aware of the fact that: (a) provided 3 million won as a bribe to the AJ in charge of actual investigation; (b) made a statement to the AJ in charge of actual investigation; and (c) requested BE to pay the meal cost with the employees of the tax office; (c) paid 300,000 won in advance; and (d) made a prior settlement of the meal cost with the employees of the tax office; and (e) made a statement to the effect that “BE delivered 1 million won or more on August 27, 2012” (the investigation record No. 4208,4209); and (e) made a statement to the effect that Defendant B did not deliver 20 million won cash to other tax officials; and (e) made a positive conclusion that Defendant B did not make a statement to the effect that it did not carry out the investigation of this case.

D) Defendant A made a statement at the prosecutor’s office to the effect that Defendant A had no choice but to report the fact that the investigator was arrested on the police on the charge of offering of the instant bribe, and that the investigator was not forced to make a false statement (including the fact that he was forced to give KRW 10 million and KRW 5,216,000 to AP related to Paragraph 3 of the said judgment). Defendant A made a disposition to the effect that most of the facts of the crime of offering of the said bribe were suspected.

2) In the case of the bribery, in a case where the defendant, who was selected as the receiver of the bribery, denies the fact of the bribery and there is no evidence such as objective materials to support the bribery, the statement made by the lender and the sender of the bribe must be admissible as well as the admissibility of evidence, and there should be credibility excluding a reasonable doubt. In determining whether the credibility exists, not only the rationality, objective reasonableness, consistency before and after the contents of the statement itself, but also its human being, and the existence of interests derived from the statement should also be examined (see Supreme Court Decision 2007Do3798, Jul. 27, 2007).

3) In light of the above process of reversal of Defendant A’s statement, rationality of the statement itself, and the interest of Defendant A based on the size of money and valuables granted, it is difficult to believe that Defendant A’s statement to the effect that Defendant A gave KRW 16 million in cash, the only evidence corresponding to this part of the facts charged, is the only evidence that conforms to this part of the facts charged, and even if all the evidence submitted by the prosecutor were collected, it cannot be said that Defendant A’s statement was proven to the extent that there is no reasonable doubt about

B. The part of offering and receiving entertainment exceeding KRW 295,00,000 as indicated in the judgment

1) There are statements made by Defendant A, police statements made by Defendant A, and photographs made by Defendant A with respect to K, which correspond to or correspond to this part of the facts charged.

2) However, the following circumstances revealed in the records and arguments of this case (i.e., (i) Defendant B consistently acknowledged the fact of drinking alcohol in AG with Defendant A from the prosecution to this court, but consistently asserted that there is no sexual traffic; (ii) Defendant A stated that all of cash payments, except meal costs of KRW 590,000,000,00,000,00,000,000,000,000,000 won, and the amount of drinking alcohol, should not be calculated by 1.5 million, not only the accurate amount, but also the amount of meal payments of KRW 50,000,00,00,000,000,000,0000,000,000,000,000,000,000,000,000,000,000,000,000,000 won, and00,000 won.

4. Conclusion

Therefore, since this part of the facts charged against Defendant A and B constitutes a case where there is no proof of crime, it should be pronounced not guilty pursuant to the latter part of Article 325 of the Criminal Procedure Act. However, insofar as the crime of offering a bribe with respect to Defendant A and the crime of acceptance of bribe with respect to Defendant B are found guilty, the judgment of not guilty is not rendered separately in the text.

It is so decided as per Disposition for the above reasons.

The presiding judge and judges;

Judges Sung Jae-in

Judges' Index

1) The facts charged against Defendant A and B are as follows: (a) Defendant A has given and received a bribe equivalent to KRW 18,000,000 in total to Defendant B; and (b) Defendant B has given and received a bribe equivalent to the same amount from Defendant A. However, the part in excess of the amount offered and received in the judgment is not guilty as seen below.

2) From the first police investigation ( March 30, 2015), Q reversed the statement to the effect that A paid KRW 2 million as the price for the two uniforms in ordering the production of double uniforms, but received “the Defendant’s two uniforms based on A’s confession statement” and received the Defendant’s false statement from the Defendant (as of April 10, 2015, the investigation record 298-300 pages). However, in the second police investigation (as of April 10, 2015), the first police investigation (as of April 10, 2015, the Defendant did not request the false statement to the effect that “The Defendant did not request the false statement” again re-reconvened the first statement to the effect that “The Defendant did not request the false statement to the effect that he did not request the Defendant to appear at the police again after being asked for another criminal facts of the Defendant, which was demanded to reverse the statement (the investigation record 3420-3423 pages).

3) Although the sentencing guidelines do not apply to the crime of offering the bribe in relation to the concurrent crimes under the latter part of Article 37 of the Criminal Act, the crime of offering the bribe is a crime for which the sentencing guidelines are provided, the sentencing guidelines for the sentencing guidelines are indicated for reference.

A person shall be appointed.

A person shall be appointed.