[1] Criteria for determining the criminal intent in a crime of fraud

[2] The meaning of "cases or affairs dealt with by public officials" under Item 1 of Article 90 of the former Attorney-at-Law Act

[3] In a case where the defendant admitted the authenticity and voluntariness of the protocol of interrogation of the suspect as to himself, whether the protocol of interrogation of the suspect is admissible (affirmative with qualification)

[4] The time limit where the declaration of consent to evidence can be revoked or withdrawn (=the time the examination of evidence is completed)

[1] Article 347 of the Criminal Act / [2] Article 312 of the Criminal Procedure Act / [3] Article 312 of the Criminal Procedure Act / [4] Article 318 (1) of the Criminal Procedure Act

[1] Supreme Court Decision 84Do312 delivered on September 25, 198 (Gong1984, 1751) Supreme Court Decision 97Do2630 delivered on January 20, 1998 (Gong1998Sang, 639) / [2] Supreme Court Decision 94Do940 delivered on September 15, 1995 (Gong1995Ha, 3467) / [3] Supreme Court Decision 97Do60 delivered on May 16, 1997 (Gong197Sang, 1805), Supreme Court Decision 9Do484 delivered on April 27, 2001 (Gong201Sang, 1305) / [209Do9499 delivered on April 23, 2004] Supreme Court Decision 209Do98499 delivered on April 23, 2004

Defendant 1 and one other

Defendant 1 and Prosecutor (Defendant 1 and 2)

Law Firm Han-gu, Attorneys Han-hee et al.

Incheon District Court Decision 2002No1273 delivered on May 29, 2003

Each appeal shall be dismissed.

1. As to Defendant 1’s appeal

A. The intent of the crime of defraudation, which is a subjective constituent element of the crime of fraud, has to be determined by comprehensively taking into account the objective circumstances such as the Defendant’s financial history, environment, details of the crime and the process of performing transactions before and after the crime (see Supreme Court Decision 97Do2630, Jan. 20, 1998, etc.). Examining the evidence duly admitted by the court below in light of the records, Defendant 1 borrowed KRW 40,50,000 from February 10, 1998 to July 28 of the same year, and at the time, Defendant 1 had no special property other than KRW 100,000,000 from the leased deposit of the restaurant operated under the name of Nonindicted Party 2, which was 40,000,000 won in total at the time of the borrowing of the loan and its management status, and most of the loan and its funds were to be paid to Defendant 1 as the borrower of this case without any specific intention to loan or loan.

In the same purport, the fact-finding and judgment of the court below that found Defendant 1 guilty of fraud among the facts charged in this case shall be justified, and there shall be no errors in the misapprehension of the rules of evidence or in the misapprehension of the legal principles as to the criminal intent of defraudation in fraud.

In addition, the establishment of fraud through the defraudation of property should be determined at the time of the receipt of the property. Thus, even if Nonindicted Party 1 exempted the loan of this case, as otherwise alleged in the grounds of appeal, it does not affect the establishment of the crime of fraud of this case, even though it was later exempted from the loan of this case.

B. Examining the evidence duly admitted by the court below in light of the records, Defendant 1 was found to have been guilty on 198.

3. From around September of the same year, 30 million won received from Nonindicted 1 to around September of the same year is not a pay for Defendant 1’s work as the representative director of the Dong environmental corporation, but a light environment corporation operated by Nonindicted 1 is placed in favorable status such as cleaning zone and capacity adjustment compared to other septic tank cleaning businesses, and it is known that the money is the money received under the pretext of solicitation for the affairs handled by the public official while prohibiting the permission of the new septic tank cleaning business in addition to the lack of permission already granted. The case or office work handled by the public official under Article 90 subparag. 1 of the former Attorney-at-Law (amended by Act No. 5815 of Feb. 5, 199) is interpreted to refer to the case or office work of all persons other than the representative director of the corporation. Thus, it is reasonable to interpret that the representative director of the corporation was not a new representative director for the purpose of cleaning and capacity adjustment under the pretext of Defendant 1’s new request for cleaning without any restriction on his own cleaning activities (see Supreme Court Decision 94Do940, Sept. 15, 100, etc.

In the same purport, the fact-finding and decision of the court below that found Defendant 1 guilty of violating the Attorney-at-Law Act among the facts charged in this case shall be justified, and there shall be no errors in the misapprehension of legal principles as to "other person's business" under Article 90 subparagraph 1 of the former Attorney-at-Law Act.

C. Even in cases where the defendant acknowledged the authenticity and voluntariness of the protocol of suspect examination of the defendant prepared by the prosecutor, and then submitted the document, when the first statement that recognized the voluntariness of the statement in light of various circumstances, such as the contents of the protocol, the process of preparing the protocol, and the statement related to the defendant's crime in the court, is deemed to be reliable, the protocol of suspect examination is still admissible (see Supreme Court Decisions 99Do484, Apr. 27, 2001; 2004Do805, Apr. 23, 2004; 2004Do805, Apr. 23, 2004). However, the declaration of consent to evidence under Article 318 of the Criminal Procedure Act may be revoked or withdrawn before the examination of evidence is completed, so the consent from the court of first instance cannot be revoked after the examination of evidence is completed, and even if the consent to evidence is revoked or withdrawn after the examination of evidence is terminated or withdrawn after the examination of evidence is finished, it shall not be revoked (see Supreme Court Decision 999Do.

According to the evidence list which forms part of the protocol of this case, Defendant 1's protocol of interrogation of the suspect himself prepared by the prosecutor on the date of the first trial of the first trial of the first trial of the first instance stated that the defendant 1 recognized its formation and voluntariness except for the confrontation part with Nonindicted 1, and consented to the protocol of statement of Nonindicted 2 as evidence. According to the first trial of the first instance court, the court's opinion on the result of investigation of evidence is stated that the defendant 1 and the defense counsel stated that they did not have any opinion about the result of investigation of evidence. In addition, after examining the process of arrest of the defendant 1, the investigation of the defendant 1, the contents of the defendant's statement, the defendant's experience, environment, character, and other circumstances in the records, it cannot be found that the defendant's statement made by the prosecutor is not made free of time after emergency arrest or after being open to the public prosecutor's office before the examination of evidence is completed, and there is no error in the misapprehension or withdrawal of the protocol of interrogation of evidence as evidence.

2. As to the prosecutor's appeal

The lower court stated that, despite the fact that Nonindicted 1’s statement at the investigative agency and the court of law consistent with the facts charged of the offering of a bribe to the Defendants and the recorded tape of Nonindicted 1 and Defendant 1, Nonindicted 1’s tracking results of a check offered as a bribe; ① Nonindicted 1 consistently at the prosecution and the court of first instance, 30,000 won of a cashier’s check around March 198, 200 won, and 20,00 won of a check were given to Defendant 1 and delivered to Defendant 2. However, it is difficult for Nonindicted 1 to reverse the judgment of the lower court that issued the checks to Defendant 1 through Defendant 1, and that there was no possibility of delivery of 90,000 won of a check to Defendant 2, and that there was no possibility of delivery of 90,000 won of a check to Defendant 2 under the pretext of this case’s non-indicted 1’s non-indicted 1 and Defendant 1’s non-indicted 1’s statement to Defendant 2.

Examining the relevant evidence in light of the records, the fact-finding and judgment of the court below is just and acceptable, and there is no error of law by misconception of facts in violation of the rules of evidence.

3. Therefore, each appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Shin Shin-chul (Presiding Justice)