Defendant 1 and two others

Kim Young-young et al.

Attorney Giology

Defendants

Seoul High Court Decision 96 Ma12 (Partial), 96 Ma95 (Consolidated) decided August 26, 1996

The part of the judgment of the court below against the Defendants is reversed.

A person shall be punished by imprisonment with prison labor for not less than two years and six months, with prison labor, on the part of the defendant.

With respect to the appearance of the defendant and the appearance of the defendant, 180 days out of the detention days prior to the pronouncement of the original judgment shall be included in the above punishment.

However, the execution of the above punishment shall be suspended for the defendant's sex, and it shall be suspended for four years from the date this judgment becomes final and conclusive.

The amount of KRW 50,000,000 shall be collected from the Defendant’s negligence.

1. Determination on the grounds for appeal, etc.

A. misunderstanding of facts or misapprehension of legal principles regarding Defendant's negligence

(1) As to the assertion that each amount received by a complete exchange is political funds and is not a bribe

The defendant's negligence asserts that each of the above amounts received as a principal fund was collected with the election fund of the candidate for the next president in 1987 (hereinafter referred to as the "election fund for the next president prior to the election for the next president in 1987, and that the donor also was granted with awareness of the presidential election fund, and there is no relation with the representative political fund and no relation with the duties of the president and no relation with the payment, and there is no preferential relation with the lender, and therefore, there is no bribe. Therefore, the defendant's negligence is not a bribe, regardless of punishment for violation of the Political Fund Act by deeming the above amounts as political fund as a bribe, the above amounts cannot be punished as a crime of aiding and abetting the acceptance of bribe.

Doctrine,

For the same reason as the court below determined properly, each of the above amounts is a bribe in relation to the duties of the former refund without any relation to the title at the time of receiving them, and cannot be deemed a bribe having a pure nature as a political fund, and the issue of whether the former amount was actually given preferential treatment to the lender is not a requirement for a bribe. However, since each of the above amounts is not collected and managed in accordance with a certain procedure under the Political Fund Act, there is no room for being lawful under the above Act. Thus, the above assertion is without merit.

(2) As to the assertion that the defendant's negligence did not have the recognition of the bribe or the acceptance of the bribe

The defendant Lee Tae-tae, who was ordered to collect the substitute fund from the exchange, requested that the substitute fund be provided to the business operators in ordinary-friendly relationship, and delivered the funds paid by the business operators, and confirmed that the above funds were used as the substitute fund for the candidate. Thus, he did not think that the above funds were regarded as the substitute fund, but did not think that it was a bribe for the President's duties, and there was no intention to aid and abetting the President's acceptance of the bribe. Thus, the defendant asserted that the above funds were merely an act in accordance with the presidential order, and there was no intention to aid and abetting the President's acceptance of the bribe.

Doctrine,

According to the evidence duly examined and adopted by the court below, it can be recognized that the court below acknowledged the fact that the President's attitude, despite the awareness that the public project operators expect active or passive profits and granted money to the President even if they are aware of the company's ability to exercise direct or indirect influence over the company's activities, the court below solicited the President to give money to the President or received money from the public project operators on behalf of the President in accordance with the former two-way exchange order, and that the public project operators deliver it to the President in lieu of the former two-way exchange order. In the case where the president's appearance is held solely with a company, the court below participated in the decision at the time and place of the interview and notified the project operators of the above date and place and notified the project operators of the fact that the former two-way exchange was received money from the public project operators by notifying the project operator and guiding the project operator at the above place. According to the above facts, according to the above recognition, the defendant's attitude did not have any influence on each of the above public project's acceptance of the above money in relation to the crime of bribery.

(3) As to the assertion that there was no possibility of expectation

The defendant Lee Jong-tae has almost common practice to receive election funds from business entities every five elections. In particular, the President before the presidential election, and several agencies such as the National Security Planning and Finance Department, etc., such as the National Security Planning Department and the Finance Department, have been directed by the President, and it was not possible to expect that the defendant's attitude, which is the Chief of the Presidential Security Office, should be refused only.

Doctrine,

Even if there was a receipt of election funds from entrepreneurs in the five public sector, it cannot be deemed a legitimate practice that does not go against the social norms, and it cannot be deemed that only if there was a presidential order, it could not be easily expected that it did not commit an illegal act. Therefore, the above argument is without merit.

(4) On the acceptance of his accepted bribery by the Defendant (whether or not the duty relation or compensation relation has been related)

The Defendant’s attitude argues that the duty of the President’s head of the Presidential Security Office to coordinate the interview schedule is performed by the direction of the President, and that the Defendant’s attitude does not unilaterally reply to the interview schedule, and that the amount of 50 million won, which the Defendant’s Ansan received from Nonindicted Professor Chang-chul, is merely a word “Madro” value given to the effect that the annual end of the year, not a bribe received for the purpose of holding an interview with the President, but rather for using the interview with the President at the expense other than the security room’s duty according to Daom.

For the same reason as the court below properly decided, it is reasonable to view that the above money is recognized as money given in relation to arranging an interview with the President and the above interview arrangement service is included in the duties of the chief security office of the defendant's movement. Therefore, the above argument is groundless.

B. misunderstanding of facts and misapprehension of legal principles with regard to Defendant Sung Yong-sik

(1) As to the assertion that political funds are not a bribe

Defendant 1 did not intend to create a substitute fund without the awareness that it is a bribe between the parties who received the instant funds. The time of receiving the funds was immediately before the presidential election, and the process of raising the funds was also officially collected through the official command system. Defendant 1 asserted that the funds raised by Defendant 1 was actually delivered to the Korea Sports Association, and was actually used as election funds, and that there was no preferential or preferential treatment in relation to the business after the funds were granted by the lender. Therefore, Defendant 1 asserts that the instant funds are political funds only and do not constitute a bribe.

Doctrine,

For the same reason as the court below has properly decided, the money of Section 1. of the court below in relation to the duties of the defendant, who is the Commissioner of the National Tax Service, and Section 2. of the above money is a bribe received in relation to the duties of the former two-way refund, and each of the above money is delivered to the defendant, which is the defendant, in relation to the duties of the former two-way refund. Thus, the crime of accepting or aiding and abetting the bribe is established without relation to the title at the time of receiving it. Each of the above money is not a pure political fund, and it is not related to the establishment of the crime of accepting the bribe, and it is not related to whether the above money was actually given preferential treatment to the lender, and since each of the above money is not collected and managed in accordance with certain procedures prescribed in the Political Fund Act, there is no room to receive legality by the above law.

(2) As to the assertion that there was no possibility of expectation

Defendant Sung-sung, who works as the Commissioner of the National Tax Service at the time, and received orders from the President and the Director of the National Security Planning Department, and thus, it is virtually impossible for the President and the Director of the National Security Planning to refuse the order of fund-raising from the public sector in light of the current power system and the order of the public sector. Accordingly, Defendant Sung-sung, at the time, did not have the possibility of expectation for lawful acts.

Doctrine,

According to the records, even though Defendant Sung-sung, who was appointed by the Commissioner of the National Tax Service as the head of the National Security Planning Department at the time of his transfer and was ordered by the head of the National Security Planning Department to collect a substitute fund from a middle-standing enterprise from the National Security Planning Department office, it is acknowledged that he was the President’s instruction. However, on such circumstance, it cannot be deemed that Defendant Sung-sik, the Commissioner of the National Tax Service, the head of the National Tax Service, was unable to expect that he did not commit an illegal act of raising a large amount of bribe from many persons. Thus, the above assertion is groundless.

C. The defendant's assertion of facts or misapprehension of legal principles

(1) As to the assertion that the recipient did not constitute a bribe because he did not have the right to dispose of the goods.

Defendant Ansan asserts that the money that Defendant Ansan received in collusion with Defendant Shobane is a political fund that the presidential election headquarters of the Party was sent to the Defendant, and that it is not a profit to use, profit from, and dispose of it. Defendant Shobbly asserted that Defendant Shob did not constitute the crime of acceptance of bribe, since it is a political fund that Defendant Shobane did not belong to the Defendant Sungbow who is the Commissioner of the National Tax Service.

Doctrine,

According to the evidence duly examined and adopted by the court below, although public corporations were to have granted each of the above money by hearing the statement that they will deliver the money to Defendant Sung-sung, it can be acknowledged that in fact, they had been given in relation to the duties of the Commissioner of the National Tax Service with overall control over the imposition and collection of taxes, and limited authority to conduct tax investigations, etc. for companies, each of the above money has been used as the money to be used as the money to be used as the money to be used as the money to be used as the money to be used as the personal purpose, and that the use to be used as the money to be used as the money to be used as the money to be used as the money to be used as the money to be used as the money to be used to be used as the money to be used as the money to be used to be used as the money to be used as the company to be used to be used as the money to be used to be used to be used to be the defendant, and that the money has not been used to be used to be used as the money to be used to be

According to the above facts of recognition, since the defendant Sung-sung only received each of the above money in consultation with the business person in relation to his duties, each of the above money shall be deemed to have been attributed to the defendant Sung-sung, and since it is impossible for the defendant Sung-sung to send the whole amount of money received from the business person with the substitute fund, it shall not be deemed to have received each of the above money in the situation where it is impossible for the defendant Sung-sung to send it with the substitute fund, and how to dispose of the above money shall not be deemed to have reached a decision by the defendant Sung-sik, it shall not be deemed to have been subject to the defendant Sung-sung to have no right to dispose of each of

(2) As to the assertion that Defendant 1 was not aware of his intent to obtain the Information and Communications Technology Act

Defendant Ansan argues that the acceptance of a bribe means the acceptance of a bribe with the intention of acquisition, so in order to recognize the intention of acceptance of bribe, Defendant sexually and sexually, Defendant sexually, without the intention of acquisition that the said bribe belongs to his own, was sent to the Counterscopic Headquarters with the full amount of the money for the Counterscopic fund, and that it did not constitute the crime of acceptance of bribe due to lack of the intention of acceptance of bribe.

Doctrine,

Since the intention of acquisition does not mean only the intention to directly consume it, in a case where the money is issued with the agreement between the provider and the recipient of the money as a group of recipients, the intention of acquisition by the recipient cannot be denied. If the facts in this case are the same as seen above, it shall be deemed that there is the intention of acquisition by the defendant, and the defendant, who formed the joint principal body with the defendant, as such, the above assertion is groundless.

D. Determination ex officio as to whether the former is a co-principal of each of the crimes listed in paragraph (1) of Article 1 of the Criminal Procedure Act, including the defendant's Albather, the Sungsung, and the defendant

The summary of this part of the facts charged is that, around October 1987, at the office of the office of the office of the office of the government administration, the defendant, the head of the national security planning division at the time, using the status of the Commissioner of the National Tax Service, who has the authority to impose, collect and investigate taxes, etc. at the time, and instruct the defendant to raise funds for the 13th presidential election support from a middle-standing enterprise by taking advantage of the status of the Commissioner of the National Tax Service, who is the Commissioner of the National Tax Service, at the time, at the time of the office of the office of the office of the office of the state security planning division, and the defendant during the time the office of the office of the office of the city of the city of security planning to deliver the direction of the 13th presidential election support. The defendant's office of the office of the city of the city of security planning to "the fund raising from a middle-standing enterprise" is prohibited, and the defendant's internal leather, and it is even after the defendant's 50 million won and 50 million won.

However, comprehensively taking account of the fourth suspect examination protocol as to the filling up of the prosecutor's 13th presidential election, the first suspect examination protocol as to the defendant's safe preparation of the prosecutor, the first suspect examination protocol as to the prosecutor's sexual function, the first suspect examination protocol as to the prosecutor's sexual appearance, the first suspect examination protocol as to the court below (Seoul District Court 96Gohap12)'s first protocol as to the court below's trial records, and the statement statement as to the defendant's sexual appearance, the first suspect examination protocol as to the filling up of the 13th presidential election as to the 4th presidential election from around October 1987 to the 13th presidential election's office, and it is sufficient to give more than 10 million won an opportunity to participate in the 30th presidential election, and the second officer's office's 5th presidential election from around the 1987 to the 10th presidential senior candidate's office's 5th presidential election, and the head of the National Tax Service's office's office's 100 billion won after the appointment of the defendant's company.

However, there is no evidence to acknowledge that the former Dualket was in control of the realization of the elements of a crime by ordering a middle-standing enterprise to collect a substitute fund directly from a middle-standing enterprise, or by gathering specific methods, etc. as to the above fund-raising activities, or by checking or encouraging the act of collecting funds by the defendant's sex even though it is possible to regard the former Dualttttttttttttttttttttttttttttttttttttttttttttttttttt be used as a part of the defendant's sexual appearance and it is difficult to recognize that the latter Dottttttttttttttttttttttttttttttttttttttttttttt the defendant's sexual appearance as well as that of the defendant's sexual appearance, and it is difficult to recognize that the company's sex and sexual appearancetttttttttt the defendant's statement.

If so, the defendant's active and active reports or recommendations were made, and it was made passive and passively acceptable by stating that "the proposal donation was made in an appropriate way," and so, it was not recognized that he was involved in the act of collecting money by becoming a whole of the parties to the joint decision-making process, or by encouraging him to collect money, etc., it cannot be said that he/she was involved in the acceptance of bribe concerning his/her duties as the Commissioner of the National Tax Service.

Therefore, the part of the judgment of the court below which recognized the former exchange as a joint principal is difficult to comply with it, regardless of whether the former exchange can be a principal offender or an assistant offender with respect to the acceptance of bribery, and even though the former exchange cannot be deemed a joint principal offender with the acceptance of bribery even though it cannot be deemed that the former exchange cannot be a joint principal offender with the defendant's gender.

Therefore, under Article 364(2) of the Criminal Procedure Act, the part of the judgment of the court below regarding the defendant's work as to the relation to the defendant's work, and the defendant's work has been reversed, and it is again decided after oral pleadings without examining the argument of unfair sentencing of the defendant's work

E. As to the Defendant’s assertion of unreasonable sentencing on the Defendant’s negligence

The judgment of the court below asserts that the sentencing of the court below is too heavy, in light of the fact that it was difficult for the defendant to refuse the President's instructions since he worked for a long period of time in the public office and collected the substitute fund by the President's instructions.

Doctrine,

Considering the fact that the attitude of the defendant is the initial crime and the fact that the mistake in each of the crimes of this case is divided in depth, the sentencing of the court below of 4 years of imprisonment with prison labor for the negligence of the defendant is too heavy.

Therefore, the part of the judgment of the court below on the defendant's negligence is reversed, and it is again decided after pleading, since the argument on the unreasonable sentencing of the defendant's negligence is well-grounded.

2. Ultimately, the part of the judgment of the court below against all the Defendants is reversed and it is decided as follows through the pleading.

[Criminal Facts] The Defendants’ criminal facts to be judged in this Court are as follows:

Parts 3, 12 through 4, of the judgment of the court below

“1. The Defendant’s inner leather, and the same sex-wise, booming:

Around October 1987, at the office of state security planning at the time, the head of the office of state security planning (hereinafter referred to as the "head of the office of state security planning"), and the head of the office of state security planning (hereinafter referred to as the "head of the office of state security planning") instruct the representative of the enterprise to collect money for the 13th presidential election support, etc. using the status of the Commissioner of the National Tax Service who is the Commissioner of the National Tax Service at the time, and using the status of the representative of the enterprise with the authority to impose, collect, investigate, etc. taxes, etc. at the time, and he/she proposes that "the head of the office of state security planning (hereinafter referred to as the "head of the office of state security planning") shall deliver the direction of the 13th presidential election support at the office of state security planning (hereinafter referred to as "the head of the office of state security planning") and shall suggest that he/she will collect money from the representative of the enterprise, and shall

“1. The Defendant’s Information Industry, Industry and Energy, Industry and Energy, Industry and Energy:

Defendant Ansan, the chief of the National Security Planning Department, was only receiving the funds of the 13th presidential election from the office of the office of the president of the office of the office of the president of the office of the president of the office of the office of the president of the office of the president of the office of the president of the office of the office of the president of the office of the president of the office of the president of the office of the office of the president of the office of the president of the office of the office of the president of the office of the president of the office of the president of the office of the president of the office of the president of the office of the president of the office of the office of the president, and there is an opinion that it is reasonable to give the representative of the 30th group or less opportunities to participate in the affairs of the National Tax Service, and the statement of the designated company will be changed to "I will accept the funds in connection with the duties of the Commissioner of the National Tax Service by having the representative of the company receive the funds."

Except for the case where the court below's decision 7th 9 to 11th 9 was approved by recommending the provision of a presidential fund, and then arranged to hold an interview at the Cheongdae-Anpung meeting room in the city of the city of the city of the city of the city of the city of the city of the above, and had the former head return from the difficulty of gambling" was changed to "from the difficulty of gambling with the invitation to provide a presidential fund, and the approval was obtained."

Since all of the judgments of the court below are the same as those of the court below, they are quoted by Article 369 of the Criminal Procedure Act.

[Summary of Evidence] The summary of evidence presented by this court is identical to the time of original adjudication. Thus, it is cited in accordance with Article 369 of the Criminal Procedure Act.

[Application of Acts and subordinate statutes] 1. Relevant provisions for criminal facts

The fact that the acceptance of bribe against the defendant on the port of inside: Article 2(1)1 of the Act on the Aggravated Punishment, etc. of Specific Crimes; Article 129(1) of the Criminal Act; Article 2(1)1 of the Criminal Act; Article 2(1)1 of the Act on the Aggravated Punishment, etc. of Specific Crimes; Articles 129(1) and 30 of the Criminal Act; Article 129(1) of the Criminal Act; Article 129(1) and Article 30 of the Act on the Aggravated Punishment, etc. of Specific Crimes; Article 2(1)1 of the Act on the Aggravated Punishment, etc. of Specific Crimes; Articles 129(1) and 32(1) of the Criminal Act

1. Statutory mitigation;

Articles 32(2) and 55(1)3(3) of the Act (with respect to each of the bribery and aiding and abetting the Defendant’s Maternal and Scarle)

Articles 52(1) and 55(1)3 of the Criminal Act (Article 52(1) and Article 55(1)3 of the Criminal Act on the acceptance of bribe by the defendant, and the aforementioned defendants voluntarily surrenders to him/her)

1. Aggravation for concurrent crimes;

Article 37 (former part), Article 38 (1) 2, and Article 50 of each Criminal Code [Article 3-2 of the Act on the Aggravated Punishment, etc. of Specific Crimes (Bribery)] Article 37 (1) 2 and Article 50 [Article 3-2 of the Act on the Aggravated Punishment, etc. of Specific Crimes (Bribery)] Article 1-3 of the Act on the Aggravated Punishment, etc. of Specific Crimes, which provides for the punishment for the violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (Bribery), Article 38 (1) 2 of the Act on the Aggravated Punishment, etc. of Specific Crimes and Article 50 of the Criminal Code

1. Discretionary mitigation;

Articles 53 and 55 (1) 3 of the Criminal Act (for all the defendants, considering that the defendants are the initial offenders and the errors of this case are divided)

1. Calculation of days of detention;

Article 57 (Degrasing and Conging up to Defendant)

1. Suspension of execution;

Article 62(1) of the Criminal Act (A.I.D.) (A.I.D. for the following reasons for sentencing)

1. Ratification;

A. Article 134 of the Criminal Act (As to the Defendant’s negligence)

B. The amount of the accepted bribery shall be collected from the person who conspired with the defendant within the limit of time, and the amount of the accepted bribery shall also be collected in accordance with the actual penalty. However, the original judgment shall also be collected in full from the original return, and the collection shall not be collected from the defendant, and the defendant shall not be collected from the defendant, and the prosecutor appealed only from the defendants, and the prosecutor did not appeal. Thus, the collection shall not be ordered for the defendant's secret leather and the sexual door pursuant to Article 368 of the Criminal Procedure Act.

[Reasons for both punishment] 1. The defendant's negligence

When the Defendant was working as the Chief of the Presidential Security Office and aided and abetting the President to accept the bribe by arranging a non-official interview with the President, the Defendant actively provided the funds to the business persons, and the Defendant planned to commit a crime under the name of the presidential fund, and the number of such cases is high and the amount of the collected funds is strict, etc., the Defendant cannot be exempted from punishment in light of the fact that the Defendant actively provided the funds to the business persons.

2. Defendant 1 and 3

Defendant 1 is not a party to the crime of this case but a party to the crime of this case. Defendant 1 is not a party to the crime of this case. Defendant 1 is not a party to the crime of this case, and Defendant 1 is a party to the crime of this case.

3. The defendant's secret leather;

In addition, it should be considered that there is no economic benefit acquired by the defendant as a criminal act in this case and there is no economic benefit from the crime in this case and the mistake is divided.

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

Judges Lee Jae-sung (Presiding Judge)