Do 2019 Do 1056 A. Violation of the Act on the Punishment, etc. of Specific Crimes (Bribery)

name of preliminary crime against ancient 3: Specific crime aggravated

Helping and abetting a violation of the Punishment, etc. Act (Loss to National Treasury, etc.)

(b) Violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (Loss including National Treasury, etc.);

Assistance [Name of Partial Preliminary Crime: Punishment, etc. of Aggravation of Specific Economic Crimes

(Embezzlement) Violation of the law (Embezzlement)

(c) Acceptance of bribe;

D. Violation of the Act on Testimony, Appraisal, etc. at the National Assembly

Defendant 1 and two others

Defendant and Prosecutor (Defendant 1 and Defendant 2)

Attorney Jeong-sung et al., Counsel for the legal entity-appellant and one other (defendant 1 et al.)

Attorneys Kim Jong-soo et al., a legal entity, and two others (Defendant 2)

Attorney Kang Jin-jin et al., et al., Counsel for the legal entity (LLC)

Seoul High Court Decision 2018 2073 decided January 4, 2019

November 28, 2019

all appeals shall be dismissed.

The grounds of appeal are determined.

1. As to the grounds of appeal by a public prosecutor

A. As to the part of aiding and abetting Defendant 1’s violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (hereinafter “Aggravated Punishment Act”) around May and June, 2013 (hereinafter “Aggravated Punishment of Specific Crimes”), the lower court determined that it was insufficient to recognize that Defendant 1 was aware of the fact that Defendant 1 received money from the National Intelligence Service (hereinafter “State Information Service”) around May and June, 2013.

The argument of the grounds of appeal is nothing more than that of the lower court’s determination on the selection and probative value of evidence, which belongs to the freedom of the lower court as a fact-finding court. In light of the relevant legal principles and evidence duly adopted, the reasoning of the lower court’s judgment does not err by exceeding the bounds of the principle of free evaluation of evidence against the logical and empirical rules, as otherwise alleged in the grounds of appeal.

B. As to Defendant 2’s aiding and abetting the violation of the Act on the Aggravation of Specific Crimes (Loss to National Treasury, etc.) from May 2013 to April 2014, the lower court, based on the same reasoning as indicated in the judgment, found that the evidence submitted by the prosecutor is insufficient to support Defendant 2’s embezzlement of Defendant 2’s former president (hereinafter “former president”) and Nonparty 1’s former president, and it is insufficient to support Defendant 2’s grant of the NIS’s budget to the B B B B B B B B B, and to support the implementation thereof, on the grounds that the evidence submitted by the prosecutor was insufficient to support Defendant 2’s embezzlement.

The argument of the grounds of appeal is nothing more than that of the lower court’s determination on the selection and probative value of evidence, which belongs to the freedom of the lower court as a fact-finding court. In light of the relevant legal principles and evidence duly adopted, the reasoning of the lower court’s judgment does not err by exceeding the bounds of the principle of free evaluation of evidence against the logical and empirical rules, as otherwise alleged in the grounds of appeal.

C. Defendant 1 and Defendant 2’s act of aiding and abetting the violation of the Act on the Aggravated Punishment of Specific Crimes (Bribery) from May 2013 to July 2016, when comprehensively considering the status, role, control over the progress of the crime, etc. of Defendant 1 and Defendant 2’s act in the whole crime, as well as the person who did not implement the act by directly sharing part of the act that falls under the constituent requirements, among the solicitors, can be punished as a joint principal offender in the so-called public offering, if it is recognized that there exists functional control through essential contribution to the crime (see Supreme Court Decisions 98Do321, May 21, 1998; 98Do321, May 21, 2010; 2010).

7. The act of giving and receiving the money that accomplices acquired by committing an embezzlement jointly with the offender (see, e.g., Supreme Court Decision 2010Do3544, Apr. 15, 201) and the act of giving and receiving the money that accomplices acquired by committing an offense among the principals is offered as a result of public offering.

Unless an internal distribution has been made, there is no separate crime of bribery regarding the receipt of the said money (see Supreme Court Decisions 94Do3346, Feb. 25, 1997; 2005Do7112, Oct. 12, 2007, etc.).

2) On the grounds as indicated in the holding, the court below found Defendant 1 and Defendant 2 not guilty, on the ground that the former president and the president of the state administration agreed that all of the former president would revert embezzlement funds to the former president. Even if the president of the state administration delivered funds to the former president from May 2013 to July 2016, this would be deemed as directly embezzled of the former president’s national treasury, and it cannot be deemed as having been delivered to the former president as a bribe. Accordingly, Defendant 1 and Defendant 2’s aiding and abetting the bribe cannot be deemed as having been also recognized. 3) The grounds for appeal to the effect that this part of the court below’s judgment did not err in the misapprehension of the legal principles on evidence and probative value of evidence adopted by the court of fact-finding, or in light of the legal principles on evidence and probative value of evidence adopted by the court of fact-finding. This part of the court below’s judgment did not err in the misapprehension of the legal principles on the admissibility of evidence and evidence.

2. As to Defendant 1’s grounds of appeal

A. As to the part of aiding and abetting a violation of the aggravated Act of Specific Crimes (Loss on National Treasury, etc.) from July 2013 to July 2016

For the same reasons as the judgment of the court below, the head of the NIS determined that the monthly payment of the special project cost to the President is unlawful as it goes beyond the purpose of the use of the special project cost itself, and that Defendant 1 received and kept the special project cost coming from the fixed number of the National Assembly members, and used the special project cost in accordance with the former president’s order was erroneous, or there is no justifiable reason to believe that the act would be permissible under the former president’s order, or that there is no possibility of expectation for lawful act.

Examining the reasoning of the original judgment in light of the relevant legal principles and evidence duly adopted, there is no error of misapprehending the legal principles on recognition of illegality, expectation, etc., such as the allegation of grounds of appeal, in the judgment of the original court.

Meanwhile, Defendant 1’s assertion that he/she has no intention as a principal offender or constitutes an ex post facto offense does not have a legitimate ground for appeal by asserting that he/she is specific within the period for submission of a written reason for appeal, or that he/she is not subject to adjudication under this authority of the court below. Furthermore, in light of the relevant legal principles, the above assertion is without merit.

B. Defendant 1 appealed against this part of the National Assembly’s violation of the Act on Testimony, Appraisal, etc. at the National Assembly, but there is no specific ground for appeal as to this part of the appeal.

3. As to Defendant 2’s grounds of appeal

A. On September 2016, the lower court, based on the same reasons as indicated in its ruling, on the part of aiding and abetting a violation of the Act on the Aggravation of Specific Crimes (Bribery) by the President, the lower court: (a) held enormous authority to this President; and (b) Nonparty 200 million won received on or before September 2016, unlike the special project expenses already delivered to him; (c) held that Nonparty 2’s speech is difficult to be used by the former President; and (d) voluntarily delivered the special project expenses paid on or before the former president to Defendant 1, which were delivered to him and used under Defendant 1’s management; (b) held that it was KRW 200,000,000,000,000 to be directly delivered to the former president through Defendant 3 and received KRW 20,000,000,000,000 from the former president and received money from the former president; and (c) held that it was not suspected that it was given to Defendant 1’s official duties.

The grounds of appeal to the purport of disputing the determination of facts that led to the judgment of the court below are nothing more than that of the court of fact-finding, which is substantially attributable to the judgment of the court of fact-finding on the choice of evidence and probative value of the court of fact-finding. In light of the relevant legal principles and evidence duly adopted by the court of fact-finding, even in light of the reasoning of the judgment of the court below, the court below did not err by misapprehending the legal principles on the relation and quid pro quo of a bribe crime as alleged in the grounds of appeal, or aiding and abetting a violation of the Act on the Aggravation of Specific Crimes (Bribery) or by exceeding the limits of the principle of free evaluation of evidence against logical and empirical rules.

B. As to the part of the bribe acceptance portion, the lower court found Defendant 2’s receipt of KRW 1,350,00 from Nonparty 3, who is the secretary of the presidential secretary general of the NIS, as the secretary of the secretary general of the NIS, Defendant 2’s duty contents as the secretary of the secretary general of the secretary general of the NIS, Defendant 2’s circumstance of having a friendship with Nonparty 3, payment time and amount of money and valuables, and Defendant 2’s assistance to Nonindicted 3, based on the same circumstances as indicated in the judgment, and found Defendant 2 guilty of the crime of receiving a bribe.

The grounds of appeal to the purport that contests the determination of facts that led to the judgment of the court below are practically erroneous in the determination of evidence and probative value by the court of fact-finding which belong to the free judgment of the court of fact-finding. In light of the relevant legal principles and evidence duly adopted by the court of fact-finding, even if examining the grounds of the judgment of the court of original instance, there were no errors in the misapprehension of the legal principles as to the duty relation of a bribe crime and the relation of quid pro quo as alleged in the grounds of appeal.

C. Defendant 2 also appealed against this part of the National Assembly’s violation of the Act on Testimony, Appraisal, etc. at the National Assembly and aiding and abetting the violation of the Aggravation of Specific Crimes from July to September 2016 (Loss including National Treasury, etc.) from July 2014 to September 2016. However, there is no specific ground for appeal on this part.

4. As to Defendant 3’s grounds of appeal

On September 2016, the lower court recognized that: (a) Nonparty 2 delivered KRW 200 million to the former president around September 2016 as a bribe granted to the president in relation to the duties of the president; and (b) held that Defendant 3 was involved in the crime of aiding and abetting the former president’s bribe.

The grounds of appeal to the purport of disputing the determination of facts that led to the judgment of the court below are nothing more than that of the court of fact-finding, which is substantially attributable to the judgment of the court of fact-finding on the selection of evidence and probative value of evidence of the court of fact-finding. In light of the relevant legal principles, the reasoning of the judgment of the court below is examined in light of the reasoning of the judgment of the court below, the court below did not err by misapprehending the legal principles on the relation of duties and the relation of quid pro quo as alleged in the grounds of appeal, or by exceeding the limit of free evaluation of evidence against the logical and empirical rules.

Meanwhile, Defendant 3 alleged that the first instance court convicted the part of aiding and abetting a violation of the Act on the Aggravated Punishment of Specific Crimes (Loss including National Treasury, etc.) was illegal. However, the lower court reversed the first instance court which found this part of aiding and abetting a violation of the Act on the Aggravated Punishment of Specific Crimes, which is a preliminary indictment, and recognized the part of aiding and abetting a violation of the Act on the Aggravated Punishment of Specific Crimes, which is the primary indictment, as seen above, as it was found guilty, this part of the allegation is not illegal as it is not limited to the case subject to the judgment of the lower court.

5. Conclusion

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

Justices Park Sang-ok

Justices Ansan-chul

Jeju High Court Decision 201No. 50

Justices Kim Jong-hwan