(영문) 대법원 2021.6.10. 선고 2020도15891 판결

The guilty part of the judgment of the court below (including the acquittal part in the grounds) shall be reversed, and that part of the case shall be remanded to the Seoul High

The prosecutor's remaining appeals are dismissed.

Reasons

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. As to the Defendant’s ground of appeal

A. Relevant legal principles

In the latter part of Article 12(1) of the Constitution, the principle of due process is declared in the latter part of Article 12(1) and the right to be tried in Article 27 is guaranteed. To practically realize this, the Criminal Procedure Act adopts the principle of party-oriented trial and the principle of trial-oriented trial that the substantive examination of a case involving an accused case ought to be conducted through attack and defense activities by a public prosecutor and the both parties, and the principle of trial-oriented trial that the recognition of facts charged ought to be based only on evidence directly examined in the presence of a judge. Accordingly, after the institution of a public prosecution, all of the criminal procedures pertaining to the case belongs to the court of the lawsuit where the case is presided over, and the suspect who is the subject of an investigation exercises his/her right to defense in the position of a defendant who is equal to a public prosecutor (see Supreme Court en banc Decision 2009Do7436, Oct. 22, 2009; Supreme Court Decision 2009Do10412, Apr.

In light of the basic principles of the Criminal Procedure Act, in a case where a public prosecutor summonss a witness to an investigative agency for examination as a witness on a trial date and after going through an interview with the witness without any special circumstances, and a witness makes a statement unfavorable to the defendant in the court, the public prosecutor can be held to believe that the witness’s statement is not affected by the witness’s legal statement due to meeting or pressure on the witness, leading him/her to answer or suggesting the witness during the front hearing of the witness examination. Even if the public prosecutor can hold a prior interview with the witness as necessary, it cannot be ruled out that the witness’s statement may be distorted in the court because the witness was trained or induced during the unilateral prior interview without the involvement of the court or the defendant, even if the public prosecutor had a prior interview with the witness, such as the preparation for the witness examination, etc., of the witness’s statement or interview with the witness, the circumstance that the public

B. Summary of this part of the facts charged and the process of litigation

1) The gist of this part of the facts charged is that the Defendant received a bribe of the same amount as to the arrangement of matters belonging to other public officials’ duties by taking advantage of his status as a public official, from Nonindicted 1’s receipt of a bribe of at least 51,600,345 won in total, including the amount of use of credit card, merchandise coupon, borrowed cell phone mobile phone, mobile phone use cost, prime share, and money, and at the same time, the Defendant received a bribe of the same amount.

2) The first instance court found the Defendant guilty on the following grounds: (a) there is not sufficient proof of the receipt of gift certificates from June 2009 to May 201 for the part of the receipt of bribe within the statute of limitations of 10 years from the date of prosecution; (b) Nonindicted 1’s receipt of payment for the use of the borrowed mobile phone; (c) although the fact of receipt is recognized, the credibility of Nonindicted 1’s legal statement related to the check of the revenue sources of the case is denied; and (d) the remainder of the evidence alone lacks proof of business relationship and quid pro quo; and (e) determined that the statute of limitations for the remaining part

3) On the other hand, the lower court found the Defendant guilty on the grounds that (i) the credit card user fee, (ii) the user fee of the tea cell phone, (iii) the mobile phone user fee, and (iv) the part of the receipt of money on May 19, 2009, and (v) Non-Indicted 1’s legal statement related to the check-up case and (v) Non-Indicted 1’s statement related to the borrowed mobile phone, and (v) the fact that the Defendant received money or property profit in return for good offices and the criminal intent is recognized; (v) the receipt of merchandise coupons, February 26, 2009, and March 25, 2009, the lower court acquitted the Defendant on the ground that there was no proof of crime, and acquitted

C. Judgment of the Supreme Court

However, we cannot accept the judgment of the court below.

1) The record reveals the following facts.

A) On July 26, 2019, the prosecutor applied for Nonindicted Party 1 as witness on the date of the second trial of the first instance court on July 26, 2019, and the first instance court adopted Nonindicted Party 1 as witness on the date of the first trial on August 13, 2019, and conducted the examination of Nonindicted Party 1 as witness on the fifth trial date on September 24, 2019.

However, the prosecutor summoned Nonindicted 1 before the examination of the above Nonindicted 1 was conducted, and had Nonindicted 1 confirm the contents of the prosecutor’s statement.

In the examination of the witness in the first instance court in around 1998, Non-Indicted 1 stated that, unlike the prosecutorial statement, Non-Indicted 1 was conducted in relation to the case of the acceptance of the bribe which is his offer case, he was asked to the defendant in the same manner how Non-Indicted 2 would be the defendant, and that Non-Indicted 1 was the person subject to investigation, the defendant was the same as the person subject to investigation, and that his office was seized and seized immediately thereafter.

B) On June 17, 2020, the prosecutor applied for the examination of Nonindicted Party 1 as witness again on the first trial date of the lower court, and the lower court adopted Nonindicted Party 1 as witness on the same day and conducted the examination of Nonindicted Party 1 as witness on the second trial date of August 19, 2020.

However, as in the first instance trial, the prosecutor summoned Nonindicted 1 before the examination of the witness on Nonindicted 1 was conducted, and had Nonindicted 1 confirm the contents of the first instance court’s statement and the prosecutor’s statement. At the time of an interview, Nonindicted 1 asked the prosecutor about the matters which he would testify.

After that, unlike Non-Indicted 1's prosecutor's statement in relation to this case in the examination of witness in the court below, the issue was that Non-Indicted 1's apartment authorization process executed by Non-Indicted 3 corporation who had worked for Non-Indicted 1 himself. At that time, Non-Indicted 2, who is the house and the head of the house in Yongsan-si, was his relative at the time, and his relative was investigated as acceptance of bribe, and he was asked by the defendant at the request of the defendant, and later, Non-Indicted 1 was contacted as the subject of the investigation. At that time, Non-Indicted 1 was subject to search and seizure at the time of entering the office of the defendant and was investigated for about 4

In addition, Non-Indicted 1 stated that Non-Indicted 1 did not purely help the defendant or simply lend a mobile phone, separately from providing other money or property benefits in relation to the borrowed mobile phone at the examination of the witness in the court of first instance after the prosecutor's prior hearing.

2) We examine these facts in light of the legal principles as seen earlier. The prosecutor summoned Nonindicted 1 to the court of first instance and the court of original instance on two occasions before the examination of the witness. In the course of the interview, Nonindicted 1 confirmed not only his own written statement and the statement in the court of first instance, but also asked the public prosecutor about the matters to be testified in the court. In addition, in the examination of the witness immediately following the reversal of the previous statement concerning the check case and the name cellular phone, and in detail, Nonindicted 1’s testimony was disadvantageous to the Defendant regarding the case of the check of the guard and the check of the guard. If there are circumstances, it is difficult to avoid the possibility that Nonindicted 1 changed his previous statement to the prosecutor’s statement under the influence of the investigative agency’s meeting, pressure, response, and cancer before the examination of the witness, etc. Accordingly, it is difficult to recognize the credibility of Nonindicted 1’s testimony in the court of first instance and the court of first instance that did not affect Nonindicted 1’s legal statement due to the witness’s testimony, etc.

3) Nevertheless, the lower court found the credibility of Non-Indicted 1’s legal statement related to Non-Indicted 1’s questioning time, reason, method, contents, etc. of the prosecutor’s witness questioning and found the Defendant guilty of the part concerning the receipt of credit card payment, borrowed cell phone usage payment, and borrowed cell phone usage payment among the facts charged of this part of the accepted bribery charges.

The court below erred by misapprehending the legal principles on the determination of the credibility of a witness’s testimony made in advance by a prosecutor, thereby adversely affecting the conclusion of the judgment. The ground of appeal assigning this error is with merit.

2. As to the Prosecutor’s ground of appeal

For the reasons indicated in its holding, the lower court determined that the part on the charge of violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (Bribery) with respect to Nonindicted 4 and Nonindicted 5 (hereinafter “Aggravated Punishment, etc.”) among the facts charged in the instant case was not proven or the statute of limitations has expired, and determined that the Defendant was acquitted on the ground that there was no evidence of crime regarding the receipt of gift certificates among the violation of the Aggravated Punishment, etc. of Specific Crimes (Bribery) related to Nonindicted 1 due to the referral acceptance of bribe, and the delivery of gift certificates among the violation of the Aggravated Punishment, etc. of Specific Crimes Act (Bribery) on February 26, 2009 and March 25, 209. Examining the reasoning of the lower judgment in light of relevant legal principles and records, the lower court did not err in its judgment by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by misapprehending the legal doctrine

3. Scope of reversal

The conviction part among the part of the judgment of the court below against the Act on the Aggravated Punishment of Specific Crimes (Bribery) relating to Nonindicted 1 should be reversed on the grounds as seen earlier, and the acquittal part of the part on the violation of the Aggravated Punishment of Specific Crimes (Bribery) related to Nonindicted 1, which constitutes a blanket and commercial concurrence should also be reversed.

4. Conclusion

Therefore, without further proceeding to decide on the remaining grounds of appeal by the defendant, the part of the judgment below guilty (including the part of acquittal in the grounds of appeal) is reversed, and that part of the case is remanded to the court below for further proceedings consistent with this Opinion. The prosecutor's remaining grounds of appeal are dismissed. It is so decided as per Disposition by