The scope of money and valuables to be offered for a bribe which is the object of necessary confiscation.

Article 134 of the Criminal Act provides that the value of money and valuables to be offered as a bribe shall be collected in cases where it is necessary to confiscate them, and where it is impossible to confiscate them, the equivalent value thereof shall be collected. In light of the fact that confiscation is about a specified article and the fact that collection is based on the premise that the original confiscation could have been made, it cannot be confiscated unless the money and valuables to be offered as a bribe are specified,

Article 134 of the Criminal Act

Defendant 1 and one other

Defendants

Busan High Court Decision 95No835 delivered on December 28, 1995

The part of the judgment of the court below and each of the judgment of the court of first instance regarding Defendant 1 concerning additional collection is reversed. The above Defendant’s additional collection amounting to KRW 2,500,000 shall be collected. The remaining appeals of the above Defendant and the appeals of Defendant 2 are all dismissed

1. Determination on Defendant 1’s ground of appeal Nos. 1 and Defendant 2’s ground of appeal

Examining the evidence of the judgment of the court below and the judgment of the court of first instance cited by the court below in comparison with the records, it shall be sufficiently recognized that the defendants committed each crime in the judgment, and there is no error of law by misunderstanding the facts against the rules of evidence or by failing to exhaust sufficient deliberation in the judgment of the court below.

2. Determination on Defendant 1’s ground of appeal No. 2

Article 134 of the Criminal Code provides that the value of money and valuables to be offered as a bribe shall be collected in cases where it is necessary to confiscate them and it is impossible to confiscate them. In light of the fact that confiscation is about a specified article and the fact that collection is based on the premise that the original confiscation is possible, it cannot be confiscated unless the money and valuables to be offered as a bribe are specified, and the value thereof shall not be collected in addition.

However, the court below found the above defendant guilty of the facts charged that the above defendant conspireds with Co-Defendant 1 of the court below to offer 14,000,000 won as a bribe to Co-defendant 2 of the court below as a price for passenger car, and in collusion with Defendant 2, Co-Defendant 1, and Co-Defendant 3 of the court below to offer 10,000,000 won cashier's checks to Co-Defendant 2 of the court below as a bribe, and provided 100,000 won as a bribe to the above Co-Defendant 2 of the court below, and affirmed the above defendant's appeal against the judgment of the court of first instance that collected 1,00,000 won from the above defendant to co-defendant 2 of the court below as a bribe.

However, according to the records, 10 copies of the above cashier's checks are specified and kept by all accomplices, and thus, it is inevitable to collect the equivalent value of 2,50,000 won from the above defendants equally because it is not clear whether they have committed an impossible confiscation. Thus, it is justifiable to collect the equivalent value of 2,50,000 won from the above defendants equally. However, since money and valuables in the name of the above passenger's car price promised to be a bribe cannot be confiscated because they cannot be confiscated because they are not specified, the court below's decision that collected the equivalent value of 7,50,000 won from the above defendants in equally divided portions of the above provision, and it erred in the misapprehension of legal principles as to the collection of equivalent value under the above provision, which affected the conclusion of the judgment. Thus, there is a reason to discuss about the collection of equivalent value of the above bribe portion.

3. Judgment on Defendant 1’s ground of appeal No. 3

The argument that the sentence is excessive cannot be a legitimate ground for appeal in this case where the above defendant was sentenced to two years of imprisonment.

4. Conclusion

Therefore, pursuant to Articles 391 and 396(1) of the Criminal Procedure Act, part of the judgment of the court below and each of the judgment of the court of first instance as to Defendant 1 concerning additional collection shall be reversed, and 2,50,000 won shall be collected from the above Defendant. The remaining appeal of the above Defendant and the appeal by Defendant 2 by Defendant 2 are dismissed in entirety in accordance with Articles 399 and 364(4) of the Criminal Procedure Act without any justifiable ground. It is so decided as per Disposition by the assent of all participating

Justices Lee Yong-hun (Presiding Justice)