2017Gohap121,2017Gohap1183(combined). Bribery is accepted.

(b) Offering of bribe;

1. A.

2.2.B

3.2. C.

4.2.D

Maximum constitutionality, and in-depth trial

Attorney E (for the defendant A)

Law Firm F (Defendant B)

Attorney G, H, and I

J Law Firm (Defendant B)

Attorney K, L, M, N, andO

P Law Firm (Defendant B)

Q, R, S

Law Firm T (for Defendant C)

U, V, and W

Law Firm X (Defendant D)

Y, Z, AA, AB

February 2, 2018

Defendant A shall be punished by imprisonment of three years and fine of 220,00,000 won, by imprisonment of one year and six months for Defendant B, by imprisonment of eight months for Defendant C, and by imprisonment of one year for Defendant D. Where Defendant A fails to pay the above fine, Defendant A shall be confined in a workhouse for the period calculated by converting KRW 300,000 into one day.

With respect to Defendant B, C, and D, the execution of each of the above punishments shall be suspended for a period of two years from the date this judgment becomes final and conclusive. Defendant B shall order each of 120 hours, Defendant C, and D to provide community service for each of 80 hours. KRW 317,890,000 from Defendant A shall be collected as penalty.

Criminal facts

2017Gohap1121

1. Defendant A

(a) Status of the defendant;

The Defendant, as a staff member of the technical staff belonging to AC Hospital, treats patients using medical materials, such as taking a degree course, teaching sets for medical use, etc. in the above hospital, and applied for the purchase of relevant medical materials to the above hospital purchase team to manage the medical materials supplied through the purchase team, is a person who is deemed a public official in the application of the Criminal Act for bribery under the AD Act.

B. Acceptance of bribe from B

On August 18, 2017, the Defendant received KRW 212,100,000 in total 227 times from around March 4, 2017 to August 18, 2017, including the transfer of KRW 80,000 to the Defendant’s national bank account (AG) in return for filing an application for the purchase of a new product from AC hospital outside of the AC hospital and the AF’s office, the representative of the “AF” company that supplies medical aids, etc. from the above company to the AC hospital. Accordingly, the Defendant received a bribe in connection with his/her duties.

On January 25, 2017, the Defendant continued to supply the medical aid equipment, etc. of the above company “AH”, the representative of the above company “AH”, to the above AC hospital. The Defendant received KRW 1 million in return for filing an application for the purchase of new products from the Defendant’s national bank account (AG) and received KRW 30,100,000 in total on 27 occasions from February 16, 2009 to January 25, 2017, as shown in the List of Crimes (2) as indicated in the attached Table of Crimes (2). Accordingly, the Defendant received a bribe in connection with his/her duties.

(d) acceptance of bribe from D;

On May 15, 2017, the Defendant received KRW 75,690,000 in total 148 times from March 9, 2009 to May 15, 2017, as shown in the annexed Table of Crimes (3) in order for the Defendant to continue to supply the medical aids, etc. of the said company from D, the representative of AI, to the above AC hospital. In addition, the Defendant received a bribe in relation to his/her duties, as stated in the annexed Table of Crimes (3).

2. Defendant B

From February 2009 to May 2012, the Defendant served as a member of the “AJ” business, a supplier of medical aids, from around February 2009 to around May 2012, and operated the “AF”, a supplier of medical aids, from May 2012.

The Defendant transferred KRW 80,000,000 to A’s National Bank Account (AG) from April 3, 2009 to August 18, 2017, including the transfer of KRW 227,00,000, in total, from around April 3, 2009 to around August 18, 2017, in order to allow the said company to continue to supply the medical aids, etc. of the said company to the said AC Hospital, at the same time and place as the foregoing paragraph (b) above.

Accordingly, the defendant given a bribe in relation to A's duties.

"2017 Gohap1183"

3. Defendant C

The Defendant is a person who operates “A” as a medical supplies supplier from July 2007 to March 2017.

At the same date, time, and place as set forth in paragraph (1)(c) above, the Defendant continued to supply AC hospital’s medical auxiliary equipment, etc. to AC staff members of AC hospital with the Defendant’s “AH”’s medical use. In return for filing an application for the purchase of new products, the Defendant remitted KRW 1 million to A’s national bank account (AG) and remitted KRW 30,100,000 in total on 27 occasions from February 16, 2009 to January 25, 2017, as shown in the List of Crimes (2). Accordingly, the Defendant granted a bribe in connection with the duties of A.

2. Defendant D

From February 2006, the Defendant is a person operating AI, which is a medical aids supplier. From the same date and time as the foregoing paragraph (d) above, the Defendant continued to supply A with medical aid equipment, etc. of “AI” operated by the said Defendant to the said AC hospital, and transferred KRW 70,000 to A’s national bank account (AG) in return for filing an application for purchase of new products, and transferred KRW 70,000 from March 9, 2009 to May 15, 2017, including the transfer of KRW 75,690,000 in total, from March 9, 2009 to May 15, 2017.

Accordingly, the defendant given a bribe in relation to A's duties.

Summary of Evidence

1. Defendant B and D’s respective legal statements

1. Each legal statement of the defendant A and C

1. The legal statement of witness B, C, D, and A;

1. Each prosecutor's protocol of examination of the accused A and C by the prosecution;

1. Each police statement made to AK and AL;

1. Details of accounts A, B, and D, details of accounts in the name of C, details of accounts in the name of C, each defense counsel's opinion (time 33,41), and accompanying documents;

1. Application of Acts and subordinate statutes to internal investigation reports (transaction Statement and Order Book No. 6), each investigation report (the response (the response No. 8), the submission of a record file recording (the record No. 13), and the application of Article 28 of the AD Act of a Suspect (the record No. 49)

1. Article applicable to criminal facts;

(a) Defendant A: Article 129(1) of the Criminal Act and Article 28 of the AD Act (in all respect of each donor, both an imprisonment decision and a fine pursuant to Article 2(2) of the Act on the Aggravated Punishment, etc. of Specific Crimes);

B. Defendant B, C, and D: Article 133(1) of the Criminal Act; Article 129(1) of the Criminal Act; Article 28 of the AD Act (generally, choice of imprisonment)

1. Aggravation for concurrent crimes;

Defendant A: The former part of Article 37, Article 38(1)2, and Article 50 of the Criminal Act (the imprisonment and fine provided for in the crime of acceptance of bribe from B with the heavier punishment and the heavier punishment) are concurrent crimes: Provided, That the maximum amount of fines for each crime shall be the maximum amount)

1. Discretionary mitigation;

Defendant A: Articles 53, 55(1)3 and 55(1)6 of the Criminal Act (The following consideration of favorable circumstances among the reasons for sentencing):

1. Detention in a workhouse;

Defendant A: Articles 70(1) and 69(2) of the Criminal Act

1. Suspension of execution;

Defendant B, C, and D: Article 62(1) of the Criminal Act (The conditions favorable to the reasons for sentencing below);

Defendant B, C, and D: Article 62-2 of the Criminal Act

1. Additional collection:

Defendant A: the latter part of Article 134 of the Criminal Act

1. Order of provisional payment;

Defendant A: Judgment on the assertion of Defendant A, C, and defense counsel under Article 334(1) of the Criminal Procedure Act

1. Summary of the defendant A, C and the defense counsel's assertion

A. Defendant A

1) As to the application of deemed public officials’ legal provisions

Since the defendant is not an employee of the AM institution, but a master body employed by the AC hospital, a general hospital, the defendant is not subject to the legal fiction of a public official under Article 28 of the AD Act.

2) The assertion as to whether to accept a bribe

The defendant recognizes that he received each money listed in the Schedule of Crimes (1) and the List of Crimes (2) from B and C. However, ① the money paid from B to May 2012 was borrowed, and the money paid after May 2012 was received from B and AF was received by the defendant as a person who jointly establishes and operates B and AF, ② the amount of KRW 15 million (26th 26th 2016,60,000 (26th 26th 200) received from C was borrowed from C, ③ the amount of KRW 1 million (27th 27th 2017) paid from January 25, 2017 was paid to C, and ④ part of the money listed in the Schedule of Crimes (2nd 27th 2017) is not a bribe since it was paid as a light investigation expense.

B. Defendant C

The fact that Defendant C has paid the money listed in the attached list of crimes (2) is recognized. However, Defendant C only paid the money under the pretext of the instant list of crimes (2) at the request of Defendant C, and there was no intent to give a bribe. In addition, Defendant C also lent KRW 15 million (26) paid on June 24, 2016 to A, and ③ KRW 1 million (27) paid on January 25, 2017 (27) was repaid to A.). Part of the attached list of crimes (2) was remitted to A as a ordinary investigation expense, and thus does not constitute a bribe.

2. Determination

A. It is reasonable to view that Defendant A, a master engineer of the AC hospital, is deemed a public official as an employee of the AM institution in full view of the following facts and circumstances acknowledged by the evidence duly adopted and investigated by this court as to whether the provision on the agenda of public official applies to Defendant A. Therefore, Defendant A’s above assertion is rejected.

① According to Article 16(2) of the AD Act, AM institution may establish a branch office as prescribed by its articles of incorporation. AC hospital is registered as a branch office of AM institution (Evidence No. 1, 1242 pages of evidence record).

(2) Article 62 of the articles of incorporation of the AMF institution stipulates that the AMF hospital is an affiliated organization established by the AMF institution pursuant to Article 14(1)7 of the AD Act.

(3) Article 27 of the AD Act provides that the chief director shall appoint and dismiss employees as prescribed by the articles of incorporation, Article 65 (1) and (2) of the AM institution's articles of incorporation shall appoint the chief director of a hospital of AC, and the chief director of a hospital shall exercise overall control over the affairs of a hospital and direct and supervise employees

(4) Article 69(2) of the AMF’s Articles of Incorporation provides, if necessary, that the president shall separately determine regulations concerning the organization, human nature, remuneration, and accounting of the AC hospital, and the president of the AC hospital shall appoint employees of the hospital based on the personnel regulations of the AC hospital enacted under such regulations

B. In full view of the following facts and circumstances acknowledged by the evidence duly adopted and investigated by this court as to whether the money received from B was a bribe, it is reasonable to view that both the money received from the Defendant A was a bribe for the duties of the Defendant A. Accordingly, the Defendant A’s assertion on this part is not accepted. ① From the prosecutor’s office to the court’s examination, the Defendant A provided the money as requested by the Defendant A to obtain a help from the Defendant. The Plaintiff first lent the money for the loan, and did not think that the money was returned. The Plaintiff consistently stated to the effect that “the amount demanded after May 2012, 2012, the amount was increased” (B-record, evidence record No. 121, evidence No. 1252-1256) and its content was specific and credibility.

② Until being detained, Defendant A and B continued to build a new house for the purpose of returning to the Republic of Korea, and both Defendant A and B paid money to Defendant A to Defendant A was used as a new house construction cost. The Defendant’s assertion that money borrowed before May 2012 and received after May 2012 was the proceeds of a joint establishment and operation of AF, was developed for the first time in this court.

(3) No evidence may be submitted to prove that Defendant A has jointly established AF, such as a joint benefit agreement, an investment contract, etc.

C. Whether money and valuables received between Defendant A and Defendant C are accepted as bribe

1) Business relationship between Defendant A and Defendant C

A) Relevant legal principles

The legal interest in the crime of bribery is the process of performing the duties of a public official, the trust in the society, and the uncertainty of the act of performing his duties. Since the bribery does not require any solicitation or unlawful act, there is no special solicitation to recognize the bribe of money and valuables received, it is sufficient that money and valuables have been received in connection with his duties, and there is no need to have an individual act or a quid pro quo relation. When a public official receives money and valuables or other benefits from a person subject to his duties, the bribery cannot be deemed to be merely an exceptional consideration in light of the social norms, unless there are special circumstances, such as where it is clearly recognized that a private pro rata relation is due to the need of decentralization. If a public official received money and valuables in connection with his/her duties, even if he/she received them, such money and valuables shall be deemed to be a bribe (see, e.g., Supreme Court Decision 2010Do14891, Feb. 24, 2011).

B) Determination

Considering the following facts and circumstances duly admitted and examined by this court in light of the aforementioned legal principles, it is reasonable to view that Defendant C paid a bribe in relation to the duties of Defendant A. Therefore, Defendant C’s assertion that the money paid is only a name of the dynasium or the dynasium value.

① Medical aid supply of AC hospital is conducted by filing a claim for goods required by each department with a purchasing management team, and the purchasing management team imposes an order to a business entity, and the supplier shall prepare an application for approval for new materials at each department and submit the application for approval at each department, and then select the supplier through consultation with the Medical Materials Committee. In the police investigation, AL working at AC Hospital’s purchasing management team selects the supplier as applied by each department. As such, each department that prepares an application for approval for new materials has a substantial authority to select the supplier. Defendant A prepared a new application for approval for assistive devices used by it (No. 752 of the evidence record).

② In the prosecutorial investigation, Defendant C also stated that “in order to provide money in a stable manner” (No. 205 pages of evidence records).

③ On November 29, 2016, Defendant A transferred to Defendant C the circumstance that Defendant C was no longer able to deliver the goods to Defendant C in the course of making decisions within the AC Hospital. Defendant C asked Defendant C to take charge of the goods supplied by Defendant C so that Defendant C may maintain the delivery to the AC hospital (Evidence No. 1, 374, 375 pages of evidence record).

2) The relevant legal principles as to whether to recognize a bribe of KRW 15 million on June 24, 2016 (attached Form 2 Serial 26) (a)

In the case of the bribery, if the receiver accepts the money from the receiver but instead borrows the money from the receiver, whether or not the receiver actually borrows the money from the receiver or not shall be determined as to the motive, the process and method of delivery, the relationship between the receiver and the receiver, his position and career, the necessity of borrowing the money from the person other than the receiver, the possibility of borrowing, the amount of borrowing and the amount of borrowing, and the financial status of the receiver, and the financial status of the receiver.

In addition, the objective circumstances revealed by evidence, such as the scale of economic anticipated profits, whether collateral is provided, the period of repayment and the existence of interest agreements, whether the principal and interest of the accepter is repaid, and the possibility of compulsory execution at the time of default, should be comprehensively determined (see Supreme Court Decision 2011Do7261, Nov. 10, 201).

B) Determination

Defendant A requested Defendant C to borrow KRW 15 million on June 24, 2016. Accordingly, the fact that Defendant C paid KRW 15 million to Defendant A on the same day is recognized (A’s recording, C’s recording, and evidence record page 32). However, in full view of the following facts and circumstances recognized by the evidence duly adopted and duly examined by this court, and as seen above, Defendant A and Defendant C were having the substantial authority to deliver to Defendant C’s hospital, it is reasonable to deem that Defendant C and Defendant A were a bribe with respect to the duties of Defendant A. Therefore, this part of the allegation by Defendant A and C is not acceptable.

① In the prosecutorial investigation, Defendant C made repeatedly stated that “Defendant A may have been repaid”, and that “A would not have been able to bring a lawsuit or demand payment even if the stock price drops.” (No. 201, 202 pages). According to this, Defendant C did not think that it would have received the money paid to Defendant A, unlike the lender, in general loan-related relationship.

② Defendant A made a statement to the effect that the price of stocks at the time of the price drops and fails to pay the price of stocks at the time of the purchase (A record 7, 17 pages). The intrinsic characteristic of the shares is that the price falls inherent in the possibility of price fall and the principal is not guaranteed. That said, it is difficult to obtain payment in light of the general financial lending legal relationship.

③ The above Defendants did not prepare a loan certificate or receipt, did not enter into an agreement on interest or maturity, and did not demand or repay each other for more than one year (the Defendant A stated that there was a fact that he received several demands from the Defendant C in this Court, but the Defendant A stated that there was no fact from the police to the prosecution that he had received demands for repayment from the Defendant C, and that the Defendant A had changed his statement in this court (Evidence No. 1, 536, 1230 pages of the evidence record), and that the Defendant C had no idea to urge the prosecution to make payment (Evidence No. 202 pages of the evidence record). In light of the fact that the Defendant stated that he would have made a statement (Evidence No. 2, 202 pages of the evidence record), it is difficult to believe the above legal statement of the Defendant A as it is.

(4) In light of the fact that Defendant C received 400 million won or more from Defendant C’s share investment information, the difference in the above amount does not interfere with the recognition of a bribe. On February 21, 2017, the above Defendants sought countermeasures against the charge of a bribe by telephone communications, and Defendant A made a joint investment when Defendant C made an investment in shares, and thus, Defendant A paid the principal of investment, revenue, and interest of Defendant A out of the amount of profit (Evidence 2). However, the remaining evidence was stated to the effect that Defendant C paid 15 million won or more to Defendant C when Defendant C made an investment in shares (Evidence 1391 of the record of evidence).

6. B stated in this court that “B was demanded to lend money from Defendant A, and it was impossible to reject the request from Defendant A who was in a superior position from the point of business operation.” However, it was stated that “D was given a loan under the pretext of lending money, but it was not possible to receive the return (B/10 pages),” and D stated in this court that “D was requested to lend money as it would be difficult for Defendant A to use it as a means of lending money.” In full view of this, it is reasonable to deem that Defendant A lending money to persons related to the delivery business rather than a genuine loan request for a bribe.

3) In full view of the following facts and circumstances acknowledged by the evidence duly adopted and investigated by the court at issue as to whether a bribe of KRW 1 million is recognized on January 25, 2017 (attached Form 2-27), it is reasonable to deem that Defendant C and Defendant A received on January 25, 2017 and received on January 25, 2017, as a bribe in relation to the duties of Defendant A. Therefore, this part of the allegation by Defendant A and C is rejected.

① It appears that Defendant A did not prepare a loan certificate or receipt that Defendant C lent KRW 1 million to Defendant C, and that there was no agreement on interest or due date for payment.

② Since it is recognized that Defendant C had deposited approximately KRW 200 million in total in each account of Defendant C around December 2016, when the above Defendants asserted, Defendant C cannot find the reasons for borrowing KRW 1 million from Defendant A.

③ Defendant A borrowed KRW 1 million from India, who is an employee, in cash, and paid it to Defendant C, and stated that Defendant C received KRW 1 million from Defendant C to repay the said amount. However, around 13:43 on January 25, 2017, Defendant A received KRW 1 million from Defendant C to a new bank account in the name of Defendant C and then transferred KRW 1.8 million to A at around 14:59, and there was no fact that the said amount was withdrawn in cash or transferred to India (Article 4 of the evidence record).

④ On February 21, 2017, the above Defendants gathered measures to be taken on the charge of a bribe on the charge of telephone conversations on February 21, 2017. Defendant A told Defendant C to “A, at once, 1 million won or less, has no personal money (No. 1 right 391 pages)” (No. 391 pages). The court duly adopted and investigated the following facts and circumstances, i.e., (i) the above Defendants began to assert that the amount indicated in the annexed Table No. 2 (2) includes the ordinary investigation expenses for the Defendant or AC hospital employees, and (ii) the above Defendants did not accept any money under the annexed Table No. 2 (2) in light of the fact that it was difficult to accept the above Defendants’ assertion that there was no specific amount of money under the category of ordinary investigation expenses for the Defendant C, but there was no evidence to prove that there was no specific amount of money under the annexed Table No. 300, Mar. 24, 2014.

Reasons for sentencing

1. Defendant A

(a) The scope of punishment by law;

(b) The scope of recommendations for the sentencing criteria (limited to imprisonment) for the punishment of imprisonment and not more than September, 3 and the fine of not less than 212,10,000 won but not more than 794,725,000 won;

[Determination of Punishment] Acceptance of Bribe, Type 5 (not less than KRW 100 million to less than KRW 500 million)

【Special Convicted Person】

[Scope of Recommendation] Applicable (The basic area of the sentencing criteria is not less than 7 years but not more than 10 years, but all the upper and lower limits of the range of sentence recommended by the sentencing guidelines deviate from the scope of the applicable sentencing guidelines, and thus, it is not applicable.)

C. The Defendant, who is deemed as a public official, received a bribe of KRW 317,890,000 in total with respect to the business, such as the selection of the supplier, from the persons operating the supplier. The Defendant, who is deemed as a public official, continuously received a considerable amount of money for a long time from 2009 to 2017, and actively demanded a bribe. Comprehensively taking account of the foregoing, the crime of this case is very poor.

However, the Defendant recognized some of the crimes in this case, and the Defendant’s perception of illegality of acceptance of bribe does not seem to have been relatively clear. In view of the fact that the Defendant has no record of punishment of the same kind of crime or of punishment exceeding the fine, a punishment lower than the scope of recommendation should be determined.

In addition, the defendant's age, character and conduct, environment, motive, means and result of the crime, circumstances after the crime, etc. shall be determined as ordered by taking into account various sentencing conditions shown in the arguments in the case.

2. Defendant B, C, and D

(a) The scope of punishment by law: Imprisonment for not more than five years; and

(b) Scope of recommendations according to the sentencing criteria (with respect to imprisonment);

1) Defendant B

[Determination of Type] Bribery, Type 4 (at least KRW 100 million)

【Special Convicted Person】

[Scope of Recommendation] Basic Area (2.6 to 3.6)

2) Defendant C.

[Determination of Type] Acceptance of Bribe and Type 2 (30 million won to KRW 50 million)

【Special Convicted Person】

[Scope of Recommendation] Basic Area (10th to June)

3) Defendant D

[Determination of Punishment] Acceptance of Bribe, Type 3 (50 million won to KRW 100 million) (Special Sentencing)

[Scope of Recommendation] Basic Field (Scope of Punishment between June and June 2). The instant crime was committed against A with substantial authority over the supply of assistive medical devices, Defendant B, Defendant C, Defendant C, and Defendant D, as a bribe of KRW 75,690,000. The Defendants continued to give a bribe of approximately eight years and the amount is disadvantageous.

On the other hand, Defendant B and D recognize all of the crimes, the Defendants appear to have actively responded to the request of A, not to have actively offered a bribe to A, and the Defendants do not seem to have clearly known the illegality of the offering of a bribe to a person who is deemed a public official of A, and determine a punishment lower than the scope of the recommended punishment, taking into account the following:

In addition, the defendants' age, character and conduct, environment, motive, means and result of the crime, various sentencing conditions as shown in the arguments in this case, such as the circumstances after the crime, shall be determined as ordered.

presiding judge, judges, vibration

Judges Lee Jae-py

Power of Judge

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.