Defendant

Defendant and Prosecutor

Madern et al. and one other

Law Firm Barun et al.

Suwon District Court Decision 2009Gohap539, 548 (Consolidated), 553 (Consolidated Judgment) Decided November 17, 2010

The judgment of the court below is reversed.

A defendant shall be punished by imprisonment for seven years and a fine of one hundred million won.

When the defendant fails to pay the above fine, the defendant shall be confined in the workhouse for the period calculated by converting 200,000 won into one day.

20 million won shall be additionally collected from the defendant.

Of the facts charged in this case, the violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (Bribery) due to the bribery of KRW 30 million is acquitted.

1. Determination as to the assertion of abuse of power to prosecute

A. Defendant’s assertion

(1) Of the facts charged in the instant case, the prosecutor did not prosecute the Defendant on charges of bribery to a third party related to the right to operate the restaurant at the △△△ apartment site of Nonindicted Co. 13 (hereinafter “Nonindicted Co. 13”); ② Nonindicted Co. 7 offered KRW 30 million by Nonindicted Co. 14 (Co. 7); ③ Nonindicted Co. 15 (hereinafter “Nonindicted Co. 15”) among the construction projects of the △△ apartment complex in 15 (hereinafter “Nonindicted Co. 15”) regarding the third party’s bribery related to the Construction of the Child Park in 2008 and the first investigation at the end of 2009; and thereafter, he did not prosecute Nonindicted Co. 16,14,17 (hereinafter “Nonindicted Co. 13”) and did not prosecute the Defendant. At the time, it was impossible for the prosecutor to prosecute the Defendant’s indictment by reversing his statement that Nonindicted Co. 140,000 won was given.

However, without any further investigation as to the crime subject to the first investigation, the prosecutor investigated the facts of the criminal charge, such as acceptance of bribe, etc., against the Defendant in relation to the project for the building of the Guledong apartment, which was conducted by Nonindicted Co. 1 (hereinafter “Nonindicted Co. 1”) as of the end of 2009, and prosecuted the Defendant with the awareness of inserting the first investigation into the crime subject to the first investigation along with this part. This goes beyond the limit of prosecution discretion as it was aimed at enhancing the appearance that the Defendant has an excessive amount of bribe or interest in a similar way.

(2) In the case of Nonindicted 6 (Co-Defendant 4 of the first instance trial), the prosecutor’s failure to prosecute this part constitutes a biased investigation and prosecution, even though he received KRW 2.5 million from Nonindicted 3 (Co-Defendant 1 of the first instance trial).

B. Determination

(1) In a case where it is deemed that a prosecutor voluntarily exercised his/her authority to prosecute a substantial disadvantage to the defendant, the effect of the prosecution can be denied by regarding the abuse of the authority to prosecute. Here, the arbitrary exercise of the authority to prosecute is not sufficient merely by negligence in the course of performing his/her duties, and at least by negligence or with any intention (see Supreme Court Decision 9Do577, Dec. 10, 199, etc.).

(2) The following facts are acknowledged according to the evidence duly adopted and examined by the court below.

(A) A prosecutor conducted an investigation from November 2008 to January 2009 with respect to a crime subject to the first investigation. The Defendant was investigated as a suspect on December 10, 2008 and on January 12, 2009, but denied all of the suspected facts.

(B) In September 2009, the prosecutor had been investigating the case with respect to the building project of the Aneaeaeaeag apartment by the statement of the related parties, including Nonindicted 2, who was suffering from occupational embezzlement, etc. while carrying out the investigation related to the construction project of the Aneagegdong apartment, and had he caught the Defendant’s vision, and had he again carried out the investigation on the Defendant from October 2009.

(C) From October 30, 2009 to November 17, 2009, the Defendant still denied the entire suspected facts in the entirety of the instant facts charged at the prosecution as the suspect. Accordingly, the prosecutor conducted reinforced investigation by including investigating Nonindicted 11, 18, 19, 20 (Defendant 6 in the first instance trial), 14, 21, 22, 23 (Defendant 8 in the first instance trial), 10, 24, 25, and 26 in relation to the first investigation.

(D) With respect to the investigation conducted by the prosecutor until January 2009, the prosecutor brought a public prosecution against Nonindicted 16 and 27 on the charge of violation of the Attorney-at-Law Act, and against Nonindicted 14 on the charge of violation of the Act on the Aggravated Punishment, etc. of Specific Crimes, etc. of Specific Crimes (hereinafter “Act on the Aggravated Punishment, etc. of Specific Crimes”). Nonindicted 14 was sentenced on March 12, 2009 to a suspended sentence of three years for a violation of the Act on the Aggravated Punishment, etc. of Specific Crimes on the Aggravated Punishment, etc. of Specific Crimes (hereinafter “Act on the Aggravated Punishment, etc.”) and upheld the statement that granted KRW 30 million to the Defendant even after the judgment became final and conclusive. In addition, the conviction judgment against Nonindicted 1

(E) Meanwhile, between June 200 and September 2009, Nonindicted 6 received KRW 250 million from Nonindicted 3. The prosecutor also examined the process of receiving KRW 250 million. Nonindicted 6 stated that the company borrowed from Nonindicted 3, who had provided an economic help due to the shortage of the deposit money in the process of becoming a director. Nonindicted 3 made a statement corresponding thereto, and was also confirmed financial transactions in which the said KRW 250 million was actually used to appropriate the deposit money.

(3) Sub-decisions

In addition, the investigation and prosecution process for the crime subject to the first investigation recognized in the above paragraph (2) and the prosecutor's office must take more careful attitude in considering the social strike in instituting a public prosecution against the defendant who is the current market. In addition, the defendant was assisted by the counsel from the time he was first investigated by the prosecutor on December 10, 2008, and there is no circumstance to deem that the defendant suffered unexpected disadvantage due to the prosecution of this case, it cannot be deemed that the prosecution of the prosecutor against the crime subject to the first investigation was made by any intention and significantly deviates from the power of prosecution.

In addition, in the situation where the suspicion of a crime is not clearly revealed in connection with the receipt of money between Nonindicted 6 and Nonindicted 3, it is difficult to view that Nonindicted 6’s failure to prosecute is an abuse of prosecution power.

In addition, the grounds alleged by the defense counsel regarding the abuse of the right to institute a public prosecution are raised only after the lapse of the period for filing the appeal, and the grounds for appeal are beyond the scope of supplement of the grounds for appeal, and the validity of

This part of the defendant's assertion is without merit.

2. Determination on the part related to the crime related to the construction project of the apartment of Nonindicted Company 1.

A. Judgment on the misapprehension of legal principles as to admissibility of evidence

(1) Admissibility of evidence of documents prepared by the prosecutor containing Nonindicted 2’s statement

(A) Summary of the defendant's assertion

The documents prepared by the prosecutor, in which Nonindicted 2’s statement was written, are inadmissible for all the following reasons. The lower court erred by misapprehending the legal doctrine on “ particularly reliable circumstances” as stipulated in Article 314 of the Criminal Procedure Act, thereby adversely recognizing the admissibility of evidence.

1) Non-Indicted 2 was a patient suffering from a long-term illness at the time of investigation by the prosecution. Since arresting Non-Indicted 2 on October 13, 2009, the prosecution conducted a 16-time summons investigation conducted on the condition that Non-Indicted 2 died until November 15, 2009, and conducted an investigation requesting the 10-time arrest only during the night investigation.

2) Non-Indicted 2 was detained on the charge of violating the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Misappropriation). There was no choice but to be an impact on criminal punishment related to the above crime depending on which the statement about this case was made.

3) In the process of carrying out the project for the construction of the Geaeadong apartment by Nonindicted Co. 1, Nonindicted Co. 2 had interference with the Defendant by failing to obtain the approval of the selling price desired. The statements are inconsistent and inconsistent, and are not reasonable.

(B) Determination

1) A protocol in which the statement of a person other than the defendant was written by the prosecutor is prepared according to due process and method, and ② The protocol is proved by a statement or video-recording or any other objective means at the preparatory hearing or a trial of the person making the original statement, ③ The defendant or his defense counsel was allowed to examine the original person on the contents of the protocol at the preparatory hearing or a trial date, and ④ The protocol is admissible as evidence only when it is proved that the statement recorded in the protocol was made in a particularly reliable state (Article 312(4) of the Criminal Procedure Act).

Meanwhile, when the person making the original statement who requires a statement at a preparatory hearing or on a trial date is unable to make a statement due to death, illness, foreign residence, unknown whereabouts, or any other similar cause, it may be admitted as evidence only when it is proved that the statement was made in a particularly reliable state (Article 314 of the Criminal Procedure Act). Here, “when it was made under particularly reliable state” means cases where there is little room for false entry into the contents of the statement or the preparation of the protocol or documents, and there is a specific and external circumstance to guarantee the credibility or decentralization of the contents of the statement (see, e.g., Supreme Court Decision 2004Do5561, Jun. 14, 2007).

2) According to the evidence duly admitted and examined by the lower court, the following facts are recognized.

A) On October 13, 2009, Nonindicted Party 2, the former secretary of Nonindicted Company 1, was arrested at his own residence, and was investigated by the prosecution about three of the suspected facts [the embezzlement of KRW 8.3 billion out of the funds of Nonindicted Company 1, the embezzlement of KRW 3.3 billion against Nonindicted Company 28, the embezzlement of KRW 3.3 billion against Nonindicted Company 29 (hereinafter “Nonindicted Company 29”) and the acceptance of KRW 3.20 million from Nonindicted Company 29 (hereinafter “Nonindicted Company 29”). In the second investigation on October 14, 2009, Nonindicted Party 2 recognized the objective contents related to the above suspected facts as a substitute.

B) While promoting the project for the construction of an apartment building in the Gandong of Nonindicted Company 1, Nonindicted Co. 2, the contractor of Nonindicted Co. 8 (hereinafter “Nonindicted Co. 8”), Nonindicted Co. 2 maintained close business cooperation with Nonindicted Co. 30, the head of the housing project team of Nonindicted Co. 30 (hereinafter “Nonindicted Co. 5”). However, Nonindicted Co. 30, Oct. 14, 2009, under investigation conducted by Nonindicted Co. 29 on the facts that he received KRW 132 million from Nonindicted Co. 29 in relation to the above apartment construction project, Nonindicted Co. 3, the representative director of Nonindicted Co. 1, 200, requested the prosecutor to make an investigation into the quality with Nonindicted Co. 2 with Nonindicted Co. 3 on the ground that Nonindicted Co. 5, the representative director of Nonindicted Co. 1, Nonindicted Co. 2, 31, the Defendant, made a statement to the effect that the amount of construction would have been increased by 250 p.m. 24.

C) After the prosecutor issued a detention warrant with respect to Nonindicted 2, the Prosecutor claimed that Nonindicted 2 was a cancer patient. On October 16, 2009, Nonindicted 2 was admitted to the Suwon Detention Center’s Medical Care Center and had Nonindicted 2 check and manage the health conditions. After that, Nonindicted 2 applied for a review of legality of detention with respect to the Suwon District Court, but was dismissed on October 30, 2009.

D) On November 12, 2009, Non-Indicted 2 was under the investigation of the Defendant and the water quality with the rapid aggravation of the health condition, and the mass survey was suspended. Non-Indicted 2 was sent to a hospital and was under medical treatment, but was already transferred to the liver and her uniforms, and was eventually dead on November 15, 2009. However, Non-Indicted 2 did not request the investigation to refuse the investigation or to receive medical treatment in the course of the investigation before November 12, 2009. In addition, even according to each description of the written confirmation of the investigation process (No. 8871-8885 of the Investigation Records 2 Book 10 Book 2, the Investigation Records), even if Non-Indicted 2 himself is based on the written confirmation of the investigation process (no. 10 books 871-885 of the Investigation Records).

E) In relation to the crime of offering of a bribe to the Defendant, Nonindicted 2 added or reversed a part of the testimony during the investigation process. However, it seems that the prosecutor presented to Nonindicted 2 the file in which Nonindicted 2 recorded the conversation with Nonindicted 3, etc., or presented credit card usage, telephone conversations details, etc., and, in the process of checking the authenticity of Nonindicted 2’s testimony by the method of checking the authenticity of Nonindicted 2’s testimony with respect to other relevant persons, it appears that Nonindicted 2’s memory was ventilated. Moreover, Nonindicted 2’s testimony is consistent with the relevant persons’ statements or objective materials as if it were determined in the following relevant parts, and there is no extenuating circumstance to deem that the prosecutor’s pressure or return was made in the course of the statement.

3) In full view of the prosecutor’s investigation process on Nonindicted 2, the background leading up to the confession of the fact of offering of a bribe to the Defendant, and the process of embodying the statement, it is reasonable to deem that Nonindicted 2’s prosecutor’s statement was made in a particularly reliable state.

4) Meanwhile, through the written opinion dated February 8, 2011 and April 7, 2011, the defense counsel added the argument that in the case of the third prosecutor's interrogation protocol of Nonindicted Party 2 against Nonindicted Party 2 (the second prosecutor's interrogation protocol No. 2 book No. 3485-3507) (the second prosecutor's interrogation record No. 2 book No. 3485-3507), the prosecutor reversed or concealed the protocol prepared by Nonindicted Party 2 before the end of the video recording, and then made and submitted a statement that was late later. ② Even if the statement was changed in the course of Nonindicted Party 2's inspection of the protocol like the prosecutor's assertion, the previous protocol was completed and output, and the prosecutor received the signature seal, and prepared a new protocol as to the changed statement, even if it was required to delete the previous statement and prepare a new protocol containing only the new statement (this assertion is accepted as demanding ex officio judgment of the court).

According to the result of the party member's verification and the record of investigation process which is bound to the third protocol protocol of suspect examination as mentioned above (2:2:307 pages of investigation records), the prosecutor started to conduct the third investigation as to the non-indicted 2 on October 15, 2009 from the "16:48 of the same day" to the "3rd time," the time when the video recording is terminated is "18:26 of the same day," the time when the video recording is inspected "20:30 to 21:25 of the same day," the prosecutor refers to the fact that the non-indicted 2 made a speech or behavior that the participating investigator wishes to peruse the protocol after finishing the video recording, and it is acknowledged that the non-indicted 2 made a speech or behavior that the non-indicted 2 wishes to peruse the protocol. Meanwhile, as argued by the defense counsel, the video recording of the third protocol of suspect examination as mentioned above is not mentioned any other content than the content recorded in the protocol by the non-indicted 2 at the time when the video recording was made.

However, the following circumstances acknowledged by the record, i.e., ① there was no choice to stop video recordings prior to the “18:30” due to the failure of the computer network inside the prosecutor’s office at the time, and the prosecutor notified Nonindicted 2 of this fact in the process of investigating Nonindicted 2; ② Nonindicted 2 sent his signature to Nonindicted 2 via the inspection of the third protocol of suspect interrogation; and Nonindicted 2 sent his signature on October 16, 2009, the following day: (a) the prosecutor stated that all of the questions of the prosecutor who confirmed the contents of the previous protocol of suspect interrogation were true; and (b) even during the investigation conducted thereafter, Nonindicted 2 maintained the statements recorded in the third protocol of suspect interrogation at the time of reading the protocol of suspect interrogation, or added them by reflecting them, it is acceptable to the prosecutor’s assertion that he finally arranged and prepared the protocol of suspect interrogation, and then the prosecutor’s manipulation, destruction, or concealment of the protocol as alleged by the defense counsel.

Meanwhile, even though the part of Non-Indicted 2’s statements concerning the facts charged in the instant case was reversed, it cannot be said that it is desirable for the prosecutor to make it difficult to exercise the defendant’s right to defense by failing to enter the contents of the previous statement in the protocol, and it also conflicts with the prosecutor’s duties representing the public interest.

However, in cases where a person who made a statement partly reverses or adds his/her statement in the process of inspecting the protocol, it is difficult to view that the investigator’s reflection of it in the protocol or additional investigation in the process of reflecting it is not allowed under the Criminal Procedure Act. ② In cases where the person who made a statement reverses his/her previous statement by stating the substance of his/her statement not all without being recorded in the protocol, it cannot be readily concluded that the investigation itself is unlawful solely on the ground that he/she did not state the reversal process of his/her previous statement in the protocol. (2)

5) Ultimately, it is proper for the lower court to recognize the admissibility of the documents prepared by the prosecutor, whose statement was written by Nonindicted 2, and there is no error as alleged by the Defendant. This part of the Defendant’s assertion is unacceptable.

(2) Admissibility of evidence of files in which Nonindicted 2 recorded the conversation with others

(A) Summary of the defendant's assertion

Non-Indicted 2’s copy of the recording file did not prove that it was a copy of the original content without any artificial alteration, and the USB in which the copy of the recording file was stored did not appear to have been submitted to the prosecution by the date when it was voluntarily submitted to the prosecution, not “ October 19, 2009” as indicated in the prosecutor’s investigation report, but the circumstances where it appears to have been transferred, and thus, it cannot be admitted as evidence. Nevertheless, the lower court erred by misapprehending the admissibility of all the files recorded by Non-Indicted 2.

(B) Determination

1) A recording file recording the contents of conversations with a person other than the defendant who is not an investigative agency is not different from documents that contain statements made by a person other than the defendant, except as provided in Articles 311 and 312 of the Criminal Procedure Act. Therefore, in order to grant admissibility of such recording files unless the defendant gives his/her consent that it may be admitted as evidence, ① if recording files are original or copied from the original, it shall be a copy of the original without any artificial modification, such as editing in the duplication process, and ② Pursuant to Article 313(1) of the Criminal Procedure Act, it shall be recognized that the content of each person’s statement recorded in the recording file was recorded as stated by the person who made the original statement at a preparatory hearing or during a public trial pursuant to Article 313(1) of the Criminal Procedure Act (see Supreme Court Decision 2004Do6323, Feb. 18, 2005).

2) According to the evidence duly admitted and examined by the lower court, the following facts are recognized.

A) Nonindicted 2 recorded the contents of conversation with Nonindicted 3, 5 (Co-defendant 2), 10, 25, and 30 related to the approval of the sale price over several occasions between October 28, 2007 and November 1, 2007, in order to ensure that the sale price of a project for the building of the Soccogian apartment carried out by Nonindicted Company 1 was not well carried out as desired, and Nonindicted 2 recorded the contents of conversation with Nonindicted 3, 5 (Co-defendant 2), 10, 25, and 30, and only one copy of the recording file was sent to Nonindicted 30.

B) After obtaining the approval of sale from ○○○ City, Nonindicted 2 discarded all the original files that he recorded, but Nonindicted 30 was in custody of the said USB. Nonindicted 30 was investigated on October 19, 2009, on the ground that Nonindicted 2 received KRW 13,200,000 from Nonindicted Company 29 to 30,000,000 from Nonindicted Company 29, the said USB was submitted to the prosecution via his defense counsel.

C) On the verification date of the lower court that was implemented on May 17, 2010, Nonindicted 3 and Nonindicted 5 stated that, on the verification date of the lower court that took place on June 1, 2010, Nonindicted 25 stated that the prosecutor’s statement among the recorded files stored in the above USB was his own fostering. In addition, on June 1, 2010, the Defendant’s defense counsel stated that, among the recorded files stored in the above USB on June 1, 2010, the prosecutor’s assertion that the recorded files are Nonindicted 30, and 10 was the fostering of Nonindicted 30, and 10.

D) Non-Indicted 2 died on November 15, 2009. Non-Indicted 3 and 5 stated on May 17, 2010, the part of the lower court’s verification date that the prosecutor asserted as Non-Indicted 2’s statement among the recorded files stored in the above USB was the fostering of Non-Indicted 2.

E) Of the recorded files stored in the above USB, the part claimed by the prosecutor as Nonindicted 2’s statement is consistent with Nonindicted 2’s prosecutor’s statement and substitution, and Nonindicted 3, 30, 10, and 25 also was investigated by the prosecutor, and acknowledged that the said recorded files were the same as the recorded files stored in the said USB in the course of dialogue with Nonindicted 2.

F) The Supreme Prosecutors' Office conducted an appraisal of the recording file stored in the above USB, and as a result, it was found that the recording file could not observe the trace of intentionally editing conversations between the conversationr (No. 2 books of investigation record 9337-9341 pages).

3) According to the above facts acknowledged, the recording file stored in the above USB is recognized to have been recorded as a copy of the original as it is without any artificial modification, such as compilations, during the duplication process, and in the case of Nonindicted 2’s statement, it is recognized that the statement was made under particularly reliable circumstances.

Ultimately, the court below is just to recognize admissibility of the recording file stored in the above USB, and there is no error as alleged by the defendant. This part of the defendant's assertion is without merit.

B. Judgment on the misapprehension of legal principles as to the number of crimes

(1) Defendant’s assertion

Of the facts charged in the instant case, the lower court punished the crime of bribery of KRW 2 billion and the crime of bribery of KRW 200 million as concurrent crimes under the former part of Article 37 of the Criminal Act. However, if a bribe is accepted after the promise of the bribe, such promise is absorption into acceptance. Therefore, even if each of the above crimes is guilty, if the Defendant is found guilty only for the crime of bribery of KRW 1.8 billion and the crime of acceptance of bribe of KRW 200 million, or if the crime of bribery of KRW 2 billion and the crime of acceptance of bribe of KRW 200 million among them are established, such acts overlap with each of the above crimes, and thus, such act should be punished as a habitual

The court below erred by misapprehending the legal principles on the number of crimes in the case of actually accepting a bribe in return for promising it.

(2) Determination

(A) The lower court found the Defendant guilty of both the crime of promising a bribe of KRW 2 billion and the crime of accepting a bribe of KRW 200 million among the facts charged in the instant case. However, since the crime of promising a bribe of KRW 200,000,000, which was actually received among the two billions of the promised bribe, the crime of promising a bribe of KRW 1.8 billion and the crime of accepting a bribe of KRW 200,000,000, were incorporated into the crime of accepting a bribe, the crime of promising a bribe of KRW 1.8 billion and the crime of accepting a bribe of KRW 200,000,000,000, the lower court determined that both crimes were concurrent crimes under the former part of Article 37 of the Criminal Act (see the lower judgment, e

(B) If the crime of promising a bribe and the crime of acceptance of bribe were committed in return for a separate individual duty, the above two crimes naturally constitute concurrent crimes under the former part of Article 37 of the Criminal Act. However, as in the instant case, if the simplification of duties, “duty related to apartment construction projects conducted by the non-indicted 1 Company,” is recognized (the non-indicted 2 stated that the defendant would be granted KRW 2 billion to the defendant in the view that he would be able to assist in the entire process of apartment project, including written deliberation, even before the completion inspection (the non-indicted 2 stated that the non-indicted 2 would be granted KRW 2 billion to the defendant (the

First of all, if the defendant accepted a bribe equivalent to the amount of the promise after promising the bribe, the promise is absorption into the acceptance (see Supreme Court Decision 2001Do970, Mar. 15, 2002). Thus, only the crime of acceptance of bribe is established.

Next, there is a view that, in cases where only a part of the bribe promised as in the instant case is accepted, ① the same opinion as in the lower court (hereinafter referred to as “involving”), ② the establishment of the crime of acceptance of bribe only and whether the aggravated punishment is also determined on the basis of the actual amount of acceptance (hereinafter referred to as “second opinion”), and ③ in combination, there is a view that whether the crime of acceptance of bribe and the primary crime of acceptance of bribe is established and the aggravated punishment is determined on the basis of the aggregate of the amount actually received and the amount still remains in the status of the promise (hereinafter referred to as “third opinion”).

However, in the case of injury, if the defendant received the full amount of a bribe of KRW 100 million, then only the crime of acceptance of bribe of KRW 100 million is established, while the crime of acceptance of part of KRW 100 million, if the defendant received the partial amount of KRW 100 million, it should be deemed that the punishment for the crime of acceptance of the total amount of KRW 100 million is relatively relatively less complicated than the case of acceptance of the total amount of KRW 100 million. In addition, there is no practical benefit to distinguish between attempted crimes and the amount of the crime of acceptance of bribe in the case of the crime of acceptance of bribe, and there is no criticism that the acceptance of bribe and the promise of the above promise of acceptance of the bribe is a series of crimes by stages

Next, in the event of injury, there is any unreasonable reason to determine whether to punish a person subject to a bribe of KRW 50,00,000, depending on the circumstances in which the amount actually received after the promise to accept a bribe was made. For instance, the Defendant, who promised to accept a bribe of KRW 50,00,000, is subject to aggravated punishment pursuant to Article 2(1)2 of the Act on the Aggravated Punishment, etc. of Specific Crimes. However, if the Defendant, who promised to accept a bribe of KRW 50,00,00, is assumed to have received KRW 10,000,000,000, if following the visit, then only the crime of acceptance of bribe is established. This would result in a conclusion that, even if the promise to accept a bribe was not

(C) Ultimately, (3) Of the facts charged in this case, the crime of bribery of KRW 2 billion and the crime of bribery of KRW 200 million among the facts charged in this case ought to be comprehensively considered as the crime of bribery promise and acceptance, and whether to impose aggravated punishment should be determined on the basis of the aggregate of the amounts not yet received out of the actual amount of bribery acceptance and the amount of bribe promised. Unlike the above, the crime of bribery of KRW 1.8 billion and the crime of acceptance of bribe of KRW 200 million are established, and the crime of acceptance of bribe of KRW 1.8 billion is deemed as one of the concurrent crimes under the former part of Article 37 of the Criminal Act, and the court below

The part of the judgment of the court below cannot no longer be maintained. Meanwhile, the defendant's assertion of misunderstanding of facts or misunderstanding of legal principles is still subject to a party member's judgment.

C. Determination as to the promise to accept a bribe of KRW 2 billion

(1) Summary of the facts charged

Around October 16, 2006 with respect to the apartment construction project that was being promoted by Nonindicted Company 1, Nonindicted 2 was approved on the holding of the Urban Planning Committee, but on the same day, he had been aware that the Urban Planning Committee was absent again, and at that time, Nonindicted 2 told Nonindicted 5, the president of the ○○○ City Facilities Management Corporation, which was attached to the event site of Kimcheon National University, to give a bribe to the Defendant. At that time, Nonindicted 5, the president of the ○○○ City Facilities Management Corporation, who was in the event site of Kimcheon National University, told Nonindicted 5, who was the president of the ○○ City Facilities Management Corporation, would have expressed that “on the face of the city, the deliberation of the Urban Planning Committee would be reported to the market owner as soon as possible. As there was no way to do so in cash, it would later be delivered using the construction cost of the infrastructure construction work remaining in Nonindicted Company 1. This promise is to be observed, and Nonindicted

On the other hand, upon receipt of Nonindicted 2’s proposal through Nonindicted 5, and upon receipt of Nonindicted 6 and Nonindicted 3’s request for orders from Nonindicted 3, the Defendant, through Nonindicted 4 operated by Nonindicted 3, intended to receive and deliver a bribe of KRW 2 billion, which Nonindicted 2 presented by Nonindicted 2, and requested Nonindicted 2 at ○○○○-si Sports-related sports-related group around December 2006, that “The order for the civil engineering work among the apartment infrastructure construction works ordered by Nonindicted 1 to be ordered by Nonindicted Company 2” was approved by Nonindicted 2.

(2) Determination

(A) In the crime of promising to accept a bribe, the term “agreement” refers to a case where an agreement on the acceptance of a bribe is reached between a bribeer and a bribeer. The term “agreement” refers to a case where there is no restriction or explicit method, but there is no need to do so, and the declaration of intent of both parties to deliver and accept a bribe in relation to a public official’s duties in the future must be finally and conclusively agreed (see Supreme Court Decision 2004Do3995, Jul. 13

(B) The credibility of Non-Indicted 2’s prosecutorial statement

1) Summary of Nonindicted 2’s statement

There are some statements from the prosecutor's office of non-indicted 2 as core evidence directly corresponding to this part of the facts charged, and the summary is as follows.

A) On October 2006, the Defendant went to Kimcheon-cheon along with the Defendant, and the written deliberation of the Urban Planning Deliberation Committee, which was scheduled by the company employees, was called to the effect that the Defendant was voluntarily born. At the night school, Nonindicted 5 sent the written deliberation of the Urban Planning Deliberation Committee to the effect that ○○○ City Urban Planning Deliberation Committee, which was scheduled by the employees of the company, was brought to the effect that the Defendant was voluntarily born. On the following day, the Defendant did not have an opportunity to break back, and Nonindicted 5, who was in a usual prison and that he did not have an opportunity to break back, sent a written deliberation to the effect that the deliberation would be prompt. At the night, Nonindicted 5 sent the written deliberation to the Defendant, and asked Nonindicted 5, who was the relationship between the Defendant and that he did not have an opportunity to break up, to turn off KRW 2 billion, to the end of deliberation. After completion of the Kimcheon-cheon event, it was confirmed that the Defendant was sent to the Defendant.

B) In October 2006, Nonindicted 5 told Nonindicted 5 to transfer a bribe of KRW 2 billion to the Defendant, and said, “The Party head would be aground for the remainder of the infrastructure construction cost, because there is no big amount of KRW 2 billion.” This is because it was not mentioned at the time when the first public prosecutor’s statement was made on October 15, 2009.

C) Around December 2006, at the event site of the ○○○ City Sports Association, Defendant was present at the event site of the ○○○○○○ University. Nonindicted 3 asked companies that the Defendant requested to do so to have a civil engineering work on the infrastructure of the apartment site. After that, Nonindicted 5 went to a restaurant located in Pyeongtaek-si on or around December 2006, and Nonindicted 3 was also engaged in Nonindicted 3. At the same time, the meeting was designed to embody the contents of the private engineering work among the infrastructure works upon the request of the Defendant who was ordered by the owner of the construction work. Nonindicted 3 said that “the construction work is changed” and Nonindicted 5 also asked Nonindicted 3 to the effect that “the construction work is ordered to be done to Nonindicted 3.”

D) On February 2007 and March 2007, Non-Indicted 3 was met at the Japanese-style city of "Seoul Samsung-dong", which was located in Samsung-gu, Gangnam-gu, Seoul, about 2-3 times. At that time, Non-Indicted 3 asked Non-Indicted 3 to note that "it will be trusted and entrusted to the ○○○ City in addition to an amount of KRW 2 billion to deliver the infrastructure construction to the ○○ City." Non-Indicted 3 responded to the following: "I believe that it is possible and leave to the ○○ City."

2) Determination

A) A protocol in which an investigative agency written the statement of the person making the original statement has limitations that it is bound to have probative value to a degree extremely low compared to the statement of the person making the original statement. In particular, in a case where the legal appearance of the person making the original statement or cross-examination is not conducted, the protocol in which the statement is recorded cannot be acknowledged as having the real value of evidence enough to serve as the basis for judge’s right deliberation. Therefore, even though the Defendant denied the facts charged and the protocol in which the statement was written by the person making the original statement, if the Defendant was unable to attend the court and cross-examination by the Defendant, it is difficult to clearly recognize the exact purport of the statement even if the facts experienced are accurately and in detail without cross-examination, and the contents thereof are inconsistent with the empirical rule, and thus, there is no doubt as to credibility, such as the form and content of the protocol, and thus, it cannot be acknowledged as having any probative value of the person making the original statement as evidence (see, e.g., Supreme Court Decision 200Da27850, supra.).

B) Based on the above legal doctrine, when comprehensively considering the following circumstances acknowledged by the court below and the evidence duly admitted and investigated by the court below, Nonindicted 2’s statement, such as the above Paragraph 1, is specifically stating the circumstances leading up to the promise of bribe of KRW 2 billion between the Defendant and the Defendant, but it is doubtful about its credibility (as seen below in paragraph (1) of the following, this court does not dismiss the probative value of Nonindicted 2’s entire statement, but does not recognize its probative value as limited to the statement of the above Paragraph 1).

① Nonindicted 2’s statements on the point of time when the Defendant expressed his intention to offer a bribe of KRW 2 billion and on the method of delivering such intention are inconsistent.

On October 15, 2009, the protocol of interrogation of Nonindicted Party 2 submitted by the prosecutor as evidence stated that Nonindicted Party 2 made a confession on the first day of the offering of bribe to the Defendant, and Nonindicted Party 2 made a statement to the same effect in the course of investigation, which was already delivered to Nonindicted Party 5, to the Defendant through Nonindicted Party 5, during October 2006, when Nonindicted Party 2 made a confession on the offering of bribe to the Defendant.

However, according to the record of the CD on the prosecutorial investigation of Non-Indicted 2 submitted by the defense counsel on October 15, 2009 (Evidence No. 33) of Non-Indicted 2, the non-Indicted 2 heard that when he went to Kimcheon in October 2006, the written deliberation does not proceed, and stated that he would directly cooperate with the defendant in the construction of infrastructure in the construction of the infrastructure. The defendant was known to him, but he did not talk about the amount of KRW 2 billion at the time. After obtaining the business approval on May 18, 2007, the person should be KRW 1 billion but should be KRW 2.5 billion in the sale deliberation, it is confirmed that he did not make a statement to the defendant prior to the sale approval by setting forth that he would have to pay KRW 2.0 billion in the sale deliberation."

Ultimately, at the time of investigation conducted by the prosecution on October 15, 2009, Nonindicted 2 made conflicting statements with the Defendant as to the time when he/she expressed his/her intention to offer a bribe of KRW 2 billion (whether he/she is a police officer in October 2006 or prior to the application for approval for parcelling-out in 2007) and the method thereof (whether he/she is a defendant or directly made a statement to the Defendant). Each of the statements is specific, and the statement was reversed within a short time immediately after the first statement. Under such circumstances, only Nonindicted 2’s reversed statement on October 15, 2009, which was written in the suspect examination protocol as of October 15, 2009, cannot be readily concluded that it conforms to the substantive truth (or, Nonindicted 6’s first statement from the Defendant at the court of the lower court and the prosecutor’s office around June 2007, Nonindicted 2006, which made an investigation of KRW 200,000,000 for the Defendant 26.

② Nonindicted 2 is not understood as having immediately set the number of bribe in October 2006 to KRW 2 billion.

As of October 2006, Nonindicted Co. 2 proposed a bribe amounting to KRW 2 billion on the following grounds: “In the process of promoting the alteration of the purpose of use, Nonindicted Co. 32 had presented KRW 2 billion to the Defendant while demanding KRW 3 billion on the Defendant side. In comparison with Nonindicted Co. 32’s land, Nonindicted Co. 1’s business site was first considered about KRW 1 billion on the outer boundary of the city, when considering the degree of KRW 2 billion on the outer boundary of the city, Nonindicted Co. 1’s business site was first presented at KRW 2 billion. From the perspective of the principal, Nonindicted Co. 2 was thought to have failed to do so on the other hand because he tried to guarantee the amount of bribe amounting to KRW 2 billion on the basis of infrastructure or a restaurant, and it was thought that it was not a significant proposal on the part of the principal, and in the case of such Nonindicted Co. 1, the Defendant did not request or make an investigation report to the effect that he did not request more than KRW 2 billion on the part of the principal.

However, as seen below, the time when the Defendant asked Nonindicted 2 to give Nonindicted 3 with the infrastructure construction work is around December 2006, and the time when Nonindicted 9 asked Nonindicted 2 to give the right to operate the on-site restaurant is around January 2007 as seen below. However, it is difficult to believe that Nonindicted 2 set the bribe amount at KRW 2 billion in October 2006 and already considered the above infrastructure construction or the right to operate the on-site restaurant.

Furthermore, Nonindicted Party 2 stated that the amount of bribe was set at KRW 2 billion on the part of Nonindicted Party 2, even though it was led by Nonindicted Party 2, it is also not understood that Nonindicted Party 2: (a) took the night to consider a large amount of bribe up to KRW 2 billion without undergoing discussions with Nonindicted Party 31, the representative director of Nonindicted Party 1; and (b) expressed that the Defendant was immediately aware of such intention; (c) (d) Nonindicted Party 2, on October 16, 2006, visited the nation’s vehicle prone Kim, Mayang, and so on, dice 21:27 on the same day, she drinks with the act of drinking at night; and (d) around 21:27 on the same day, it is doubtful whether Nonindicted Party 2 provided a bribe to the hotel near the hotel at night on the 17:01:27 on the same day on the 19:5 of the same month, and then he stated that Nonindicted Party 2 was locked with the right of a bribe (25:54).

③ It is difficult to readily believe that Nonindicted 2 had already thought that he had delivered a bribe through an excessive appropriation of the cost of infrastructure construction to a policeman during October 2006.

In October 206, when Nonindicted 2 delivered the Defendant with an intention to deliver a bribe of KRW 2 billion by an excessive appropriation of the cost of infrastructure construction to the Defendant through Nonindicted 5, Nonindicted 2 was in a state where the determination of a district unit planning zone for Nonindicted Company 1’s business site was not finalized (the date on which the district unit planning zone was determined is “the date on January 18, 2007”). Moreover, it was difficult to expect that there was an infrastructure construction on a certain scale of the future. In fact, Nonindicted 3, who was scheduled to receive part of the infrastructure construction at the Defendant’s request, was in a state where Nonindicted 2 demanded Nonindicted 2 to prepare a provisional contract for the construction to be received by him, but Nonindicted 2 was not yet able to refuse to prepare a provisional contract (A07 file).

In addition, in order to deliver a bribe exceeding KRW 2 billion to the defendant by means of excessive appropriation of the construction cost, the defendant or the non-indicted 2, who will take charge of the construction, should be able to fully trust the business entity, taking into account the possibility of delivery of the bribe, or the possibility of delivery of the bribe. However, during October 2006, the police officer was not yet determined to take charge of the construction of the infrastructure, and there is no need to say that there was a company that can have been trusted by the non-indicted 2, especially in the record.

④ In October 2006, Nonindicted 2 and Nonindicted 5’s pro rata relationship, which were considered as a bribe recipient, is not clear.

It is a very significant and confidential proposal to offer a large amount of bribe up to 2 billion won. Accordingly, if a person who intends to offer a bribe seeks to deliver it to a third party without directly disclosing his/her intention to offer a bribe for any reason to the other party to the offering of the bribe, the third party must have an absolute fiduciary relationship with both the offerer and the accepter.

Nonindicted 5, who was selected by Nonindicted 2 as the sender of the intent to offer a bribe to the Defendant, was in charge of the election affairs office when the Defendant was going out of the election of the ○○ market, and the Defendant was appointed as the president of the ○○ City Facility Management Corporation on October 1, 2006, which was after the Defendant taken office at the ○○○ market on July 1, 2006. Therefore, Nonindicted 5 may be deemed to have been on the part of the Defendant around October 2006.

However, Nonindicted 5 stated that Nonindicted 2 became aware of Nonindicted 5 only when he went to Kimcheon-cheon, which was the first instance court to October 2006. Considering that Nonindicted 5’s appointment as the chief executive officer of the ○○ City Facility Management Corporation was merely a lapse of time from the day on which he was appointed to the said chief executive officer, it is difficult to readily conclude that Nonindicted 5’s statement was false, and there is no evidence to deem that there was a close relation between Nonindicted 2 and Nonindicted 5 in October 2006.

⑤ It is difficult to readily conclude that Nonindicted 2’s acceptance of Nonindicted 2’s intention, i.e., offering a bribe of KRW 2 billion through excessive appropriation of construction cost, by demanding Nonindicted 2 to receive orders on or around December 2006.

As acknowledged in paragraph (2)(A) of the same Article, the Defendant requested Nonindicted 2 to receive the orders from Nonindicted 3 through Nonindicted 5 on December 2006 upon receipt of Nonindicted 6’s request from which he had a close friendship. Ultimately, there is a possibility that Nonindicted 2 would have requested the acceptance of orders from Nonindicted 3 regardless of the bribe of Nonindicted 2.

In addition, around December 2006, Non-Indicted 2 and Non-Indicted 3 introduced by the Defendant along with Non-Indicted 5. If the Defendant classified Non-Indicted 3 as a bribe delivery, it should have discussed about the method of disposal of a bribe naturally in that place, but Non-Indicted 2 voluntarily stated that any talks about it at the time of Non-Indicted 2's delivery (No. 3 books of investigation record 4190 pages).

In regard to this, Nonindicted 2 stated at the prosecution that “ Nonindicted 3 was still unable to be trusted at that time.” Nonindicted 5 stated that Nonindicted 3’s statement to the effect that “ Nonindicted 2, who was aware of the fact that Nonindicted 3 was able to keep our secret (2 billion won bribe offer promise) and to handle the work, and Nonindicted 5 was able to handle the work,” and that Nonindicted 2, who, around February 2007 or around March, asked Nonindicted 5 to the effect that Nonindicted 3 was believed to have been given an affirmative answer by adding KRW 2 billion to the infrastructure construction cost to Nonindicted 5” (the two books of investigation record, 3: 4193 pages). However, such statement made by Nonindicted 2 to the effect that Nonindicted 3 and Nonindicted 2, who had been aware of the fact that Nonindicted 2, who was 500,000 won or more of the construction cost, could not have been delivered to Nonindicted 3 and Nonindicted 3, who had been 50,000 won or more during the said period.”

In addition, Non-Indicted 3 stated that the first half of 2007 (the non-indicted 3 was recorded on or around March 2007, and Non-Indicted 2 was recorded on or around January 2007) the Defendant and Non-Indicted 2 met the drinking together with a third person (However, it is unclear whether the person contacted Non-Indicted 3 is the Defendant, or Non-Indicted 6 is the defendant). However, Non-Indicted 3 stated that the conversation was made on a daily basis while drinking alcohol and did not talk about the promise or delivery method of a bribe amounting to 2 billion won (the non-Indicted 99 right 8348-8350 of the Investigation Record). Such facts are that the Defendant would offer a bribe by Non-Indicted 3’s request by Non-Indicted 2 on or around December 2006.

⑥ Since Nonindicted 2’s offering of a bribe of KRW 2 billion to a defendant, it is difficult to deem that the written deliberation by the urban planning committee of ○○ City was in progress.

From October 17, 2006, where Nonindicted Party 2 stated that he had delivered the Defendant a bribe of KRW 2 billion to the Defendant, the fact that the written deliberation was conducted to re-decision the business site of Nonindicted Party 1 as a district unit planning zone is recognized. However, on October 16, 2006, the Defendant already approved the written deliberation of the Urban Planning Committee of ○○○ City before he went through Kimcheon-cheon on October 16, 2006. According to the content, the Defendant was scheduled to proceed with the written deliberation procedure from October 17, 2006 (Article 5940 of the Investigation Records No. 2, No. 6940 of the Investigation Records). On the other hand, there is no evidence that the Defendant suspended or revoked the progress of the written deliberation procedure immediately after the approval. Ultimately, it cannot be concluded that the written deliberation by the Urban Planning Committee was normally conducted due to Nonindicted Party 2’s promise to offer a bribe.

7. There is also no acceptance of bribe for a long time after promising to accept bribe.

On January 18, 2007, ○○○ City decided a Class I district unit planning zone with respect to the business of building Taeeaeadong apartment by Nonindicted Co. 1. In addition, Nonindicted Co. 1 applied for business approval at ○○ on December 29, 2006 and obtained business approval on May 18, 2007. If a bribe of KRW 2 billion between the Defendant and Nonindicted Co. 2 was established on or around December 2006, in return for the above approval, Nonindicted Co. 2 demanded some of the above KRW 2 billion to the Defendant either in advance or in opposition to the above KRW 2 billion, in conformity with the empirical rule.

However, according to the statement by Nonindicted 2, around December 2006, the Defendant and the Defendant promised to offer a bribe of KRW 2 billion, but did not receive a demand from the Defendant to offer a bribe in accordance with the said promise, but the Defendant demanded, through Nonindicted 3, through August 2007, the process of approving the sale of the shares, the Defendant demanded payment of KRW 2 billion in cash or check (2 billion), or demand payment of KRW 1 billion, half of which is one billion (2 books of investigation records, 3494, 4363 pages). This also refers to the question as to whether the said promise was established around December 2006.

(C) The credibility of Non-Indicted 2’s statement stored in the USB

1) Summary of Nonindicted 2’s statement

A) Listening to the statement that the designation of a district unit was postponed, in October 2006, the support for Kimcheon Women's Festival was provided to Nonindicted 5 in order to conduct an infrastructure construction work in which the amount of KRW 2 billion is KRW 3 billion if the amount is KRW 2 billion to Nonindicted 5, and KRW 3 billion if the amount of KRW 3 billion is KRW 3 billion. Instead, this is an undertaking to conduct an infrastructure construction work by the Defendant, Nonindicted 5, and Nonindicted 3 and Nonindicted 3 in which the infrastructure construction work is installed thereafter. The district unit was re-designated after going up and up to 207 (the conversation with Nonindicted 3 on October 28, 2007, the contents of the conversation with Nonindicted 3 on October 28, 2007, and the recording file

B) While Nonindicted 3’s demand for the preparation of a provisional contract and KRW 1 billion was made in the first instance, it would have been fulfilled, but the demand by Nonindicted 3 would not be accepted. Nonindicted 3 would be unconditional to the infrastructure construction. In short, Nonindicted 3 would not be able to promptly dispose of as soon as aground. The Defendant’s request for the first instance judgment was made at 10,000 won (the conversation with Nonindicted 5, October 28, 2007, the content of the conversation with Nonindicted 5, and the recording file with Nonindicted 1013).

2) Determination

A) Non-Indicted 2’s statement is inconsistent with the objective facts acknowledged by other evidence, including Non-Indicted 2’s prosecutor’s statement that part of the contents of the statement was contrary to Non-Indicted 2’s prosecutor’s statement, and it is inconsistent with the objective facts acknowledged by other evidence, as discussed as the issue of Non-Indicted 3’s distribution price with Non-Indicted 3 on October 28, 2007, and Non-Indicted 1’s statement as well as the statement that Non-Indicted 2 took place at the time of the elected person (the defendant was appointed to the ○○ market on July 1, 2006) as well as the statement that Non-Indicted 2 already asked for the right to operate a restaurant at the construction site. Ultimately, it cannot be ruled out that Non-Indicted 2 made a statement contrary to his memory while

B) The statement made by Nonindicted Party 2 in the course of dialogue with Nonindicted Party 5 on October 28, 2007, i.e., the statement made by Nonindicted Party 2 in the course of conversation with Nonindicted Party 5, can be evidence as to the existence of bribe commitments between Nonindicted Party 2 and the Defendant. However, it is insufficient to prove that the promise was already established on December 2006.

(D) The credibility of Non-Indicted 30’s statements

1) Summary of Nonindicted 30’s statement

Nonindicted 30 stated in relation to the promise of KRW 2 billion between the Defendant and Nonindicted 2 as follows.

A) On behalf of Nonindicted Company 8, which is the pilot of the Gandong apartment, carried out by Nonindicted Company 1, Nonindicted Company 1, there was a work consultation with Nonindicted Company 2 on behalf of Nonindicted Company 8. Nonindicted Party 2 said, “The Defendant would additionally pay KRW 2 billion to the construction cost of an enterprise in charge of the civil engineering work of infrastructure, namely, Nonindicted Company 4. In addition, Nonindicted Party 2 said that “The written deliberation by the urban planning committee was revoked by Nonindicted Party 2” and proposed that Nonindicted Party 2 would take part in the Defendant’s business (the prosecutorial statement of October 16, 2009) so that the Defendant would take part in the business.

B) Nonindicted 2 stated that “The Defendant would give KRW 2 billion to the Defendant, and the above KRW 2 billion was to be given in excess of the construction cost to be paid to Nonindicted Company 4, who agreed to execute the apartment construction work.” The time when the end was first written is a kind of business pertaining to the extension deliberation following the expiration of the statute of limitations for a district unit planning zone, and thus, he/she shall be memoryd around July 2006 or around August 23, 2009 (the prosecutorial statement of October 23, 2009).

C) Since July 2006, there has been consultations with Nonindicted 2 to provide KRW 2 billion to the Defendant for the determination of the district unit plan. The place is not memory but is the same as the degree B in 2006 that Nonindicted 2 gave the Defendant a talking about KRW 2 billion from Nonindicted 2 to the Defendant. This is because it is not possible to open a deliberation and advice, and as such, it is said that the issuance would have been made. (No. 2A) Nonindicted 4 was given the delivery of KRW 2 billion from the time of the past district unit plan (No. 5, 2010).

2) Determination

Of Non-Indicted 30’s statements, the part that Non-Indicted 2 consulted the Defendant on the offering of a bribe of KRW 2 billion through an excessive appropriation of construction cost around July 2006 or around August (the time when Non-Indicted 2 made the above proposal to the Defendant was stated as a policeman in October 2006) that Non-Indicted 2 consulted with the Defendant to offer a bribe of KRW 2 billion (the non-Indicted 2 stated as a bribe of KRW 2 billion at the night on the day when the written deliberation was postponed) in order to obtain a district unit plan (the non-Indicted 2 stated as a bribe of KRW 2 billion on the day after hearing the awareness that the written deliberation was postponed, and on the night on the day, it is inconsistent with the Non-Indicted 2’

In addition, as it is difficult to recognize the credibility of Non-Indicted 2’s statement that Non-Indicted 30 did not state the fact that he had experienced directly, but did not state the fact that Non-Indicted 2 made a statement based on his memory, and that Non-Indicted 2 made it difficult to recognize the credibility of Non-Indicted 30’s statement, such as Non-Indicted 30’s statement, inasmuch as it is difficult to recognize the probative value of Non-Indicted 30,000 won in the middle of October 206 as it was determined in paragraphs (b) and (c) above

(e)other evidence.

In addition, it is insufficient to conclude that Nonindicted 3, 5, 31, and 6, etc.’s statement at the lower court or the prosecutor’s office or all the evidence submitted by the prosecutor to prove this part of the facts charged have been established as a bribe of KRW 2 billion between the Defendant and Nonindicted 2 on or before December 2006.

(f) Sub-decisions

Ultimately, this part of the facts charged constitutes a case where there is no proof of a crime. The judgment of the court below convicts the defendant, which affected the conclusion of the judgment by misunderstanding the facts or misunderstanding the legal principles as to the establishment of the crime of promising a bribe, and the defendant's assertion pointing this out has merit (However, as determined in subparagraph (2) of the following subparagraph, the defendant and the non-indicted 2 may recognize the fact that the bribe promise was established at the latest in the second half of 2007. However, the prosecutor, on February 9, 201 and the statement at the second trial of the trial, on the defense counsel's statement as to the time of the crime of promising a bribe, was completed "at the end of December 2006." The prosecutor stated that the remaining contents of the indictment were related to all indivisible crimes connected from the bribe promise to the acceptance of bribe, and thus, the defendant's right of defense was not allowed to exercise the defendant's right of defense, since it was not allowed to exercise the defendant's right of defense.

D. Determination on the bribery of KRW 200 million

(1) The credibility of Non-Indicted 2, 3, and 6’s statements

(A) The degree of the formation of a conviction in a criminal trial must be such that there is no reasonable doubt. However, it is not required to exclude all possible doubts, and rejection of a conviction by causing a suspicion with no reasonable ground that has probative value is beyond the bounds of the principle of free evaluation of evidence (see, e.g., Supreme Court Decision 94Do1335, Sept. 13, 1994). In addition, the term “reasonable doubt” referred to in this context refers not to all questions and correspondence, but to the reasonable doubt for the probability of a fact that is inconsistent with the facts that are not necessary in accordance with logical and empirical rules, and the circumstance favorable to the defendant should be based on this sexual prosecution that is grasped in relation to the fact-finding. simply a doubt based on conceptual or abstract possibility is not included in a reasonable doubt (see, e.g., Supreme Court Decision 94Do135, Sept. 13, 1994).

Therefore, the credibility of a statement by a witness or a witness is not arbitrarily denied solely on the grounds that the statement is not somewhat consistent with the statement on other minor matters (see, e.g., Supreme Court Decision 2007Do10728, Mar. 14, 2008).

(B) First of all, it is difficult to believe that the part of the statement made by Nonindicted 2 concerning the time when the Defendant first stated the bribe of KRW 2 billion and the method of providing it was determined in paragraphs (b) and (c) of the above C. (2). However, Nonindicted 2 may cause some errors in the specific time and place, etc., and the credibility of the entire statement for this reason shall not be dismissed without permission, in consideration of the limitation of the person’s memory ability as it was the process of promoting the construction project of the Aneaeadong apartment, which was implemented by Nonindicted Company 1, i.e., the process of promoting the construction project of the Aneaean apartment, which was conducted by Nonindicted Company 1, from June 2006 to September 209.

Furthermore, Nonindicted 2 maintains consistency in statements in the method of promising or delivering KRW 2 billion to the Defendant, which is the most essential part related to the instant facts charged, and most of the relevant materials, such as statements made by relevant persons or the details of card use by Nonindicted 2.

In addition, it is difficult to view that Nonindicted 2 made a false statement in order to punish the Defendant, who is the current market. As recognized in the above subparagraph (b) of subparagraph (a) of subparagraph (2) above, Nonindicted 2 had delayed the approval of the apartment sale, and recorded the conversation with Nonindicted 3, etc. from October 28, 2007 to November 1, 2007 in order to punish the persons related to the Defendant, including the Defendant, with the approval of the apartment sale. However, the files submitted on October 19, 2009 to the investigative agency were copies of the files being kept in custody by Nonindicted 30. Furthermore, Nonindicted 2 maintained a large number of files from March 6, 2008 to March 9, 2008, which were after the approval of the sale, and did not appear to have been approved by Nonindicted 25,500,000 won and 257,000 won and 257,000 won and 57,000 won and 25,00 won.

On the other hand, considering the investigation process with respect to Nonindicted Party 2, such as the above A. (1)-B, there is no circumstance to deem that the prosecutor was made a statement unfavorable to the Defendant by threatening or threatening Nonindicted Party 2.

(C) Next, in cases involving Nonindicted 3 and 6, the statement is mostly consistent with Nonindicted 2’s statement, and its credibility is supported by objective data, such as the statement or financial transaction details, etc. Furthermore, Nonindicted 3 and Nonindicted 6, at the Defendant’s expense, may have been awarded a contract for road works ordered by Nonindicted Company 1 (the construction cost of which is KRW 11.79 billion is KRW 4 million, even if it is excluded from excess KRW 2 billion), and Nonindicted 6 continued to maintain the relationship between the Defendant and the Defendant with the total line in 2004, it is difficult to find any motive or reason for Nonindicted 3 and Nonindicted 6 to make a false statement unfavorable to the Defendant.

Meanwhile, on October 15, 2009, the Defendant raised the possibility that Nonindicted 3 had entered the direction of the statement in advance at the time when Nonindicted 6 met in Seoul.

그러나 공소외 3은 2009. 10. 16. 최초 검찰 조사 시부터 3회 조사를 받을 때까지 공소외 2가 과다계상하여 준 20억 원의 뇌물을 피고인에게 전달한 사실이 없다고 강력하게 부인하다가 2009. 10. 22. 구속된 후인 2009. 10. 24. 제5회 검찰 조사에 이르러 공소외 2와의 대질 등을 거치면서 비로소 공소외 6을 통하여 1억 원을 피고인에게 교부한 사실이나 공소외 2에게 1억 원을 반환한 사실을 자백하였다. 한편 공소외 6은 피고인의 뇌물수수 혐의 등에 대한 수사가 개시된 후인 2009. 10. 20.경 2004년도 총선을 계기로 피고인과 함께 친하게 지냈던 공소외 33을 통해 “걔는 왜 서울 시내를 돌아다닌데요.”라는 피고인의 말을 전해 듣게 되자 피고인을 위하여 일단 동해시로 잠적하였다가 피고인이 검찰에서 자신에게 모든 책임을 전가한다는 소식을 접한 후 2009. 11. 1. 검찰에 자진 출석하여, 분양가 승인 과정에서 피고인의 의사를 확인하고 이를 공소외 3에게 전달한 사실과 함께 공소외 3으로부터 받은 1억 원을 피고인이 보낸 사람을 통하여 피고인에게 전달한 사실을 진술하였다.

In light of the fact that Nonindicted 3 and 6’s statements were mostly consistent with Nonindicted 2’s statements when Nonindicted 3 and 6 made statements regarding the Defendant’s crime of bribery, and that Nonindicted 3 and 6’s statements were mostly consistent with Nonindicted 2’s statements, it does not appear that Nonindicted 3 and 6 stated the direction of the statements in advance before they were investigated and made false statements accordingly.

(2) Determination as to the existence of a bribe of KRW 2 billion promise

(A) Facts of recognition

According to the evidence duly admitted and investigated by the court below, the following facts are recognized:

1) Around July 2006, Nonindicted 3 asked Nonindicted 6 to easily speak to the Defendant so that it can be ordered to receive construction works implemented at ○○○ City. Nonindicted 6 sent such request to the Defendant around that time. Nonindicted 3, who found the ○○ market room directly around September through November, 2006, requested the Defendant to the effect that “the ○○ market room is different.”

2) Around December 2006, Nonindicted 5, the Defendant’s side, introduced Nonindicted 3 to Nonindicted 2 at the restaurant located in Pyeongtaek-si and asked Nonindicted 3 to help Nonindicted 3 receive the infrastructure construction among the apartment construction projects executed by Nonindicted Company 1.

3) On June 2007, Non-Indicted 6 heard the statement that Non-Indicted 2 expressed his intention to offer a bribe of KRW 2 billion from the Defendant, and judged that it was helpful information for the owner of the construction, and delivered it to Non-Indicted 3 (Non-Indicted 6 stated that there was no fact that Non-Indicted 2 was known (No. 6377 pages 637 of the investigation record), Non-Indicted 2 or Non-Indicted 8’s non-Indicted 30 also made a statement that he was unaware of Non-Indicted 6 of the investigation record, and that he was never aware of Non-Indicted 2’s intent to offer a bribe of KRW 2 billion (No. 6350 of the investigation record No. 7, No. 6350, No. 5075 of the two books of the investigation record), and that Non-Indicted 6 could not know Non-Indicted 2’s intent to offer a bribe of KRW 2 billion from Non-Indicted 36’s prosecutor’s prior to June 2007.

4) On August 6, 2007, Nonindicted Co. 1 entered the average sale price of KRW 9.4 million ( KRW 30:8.36 million, KRW 39:9.530,000, KRW 62:10.4 million), and received an application for approval for parcelling-out to ○○○ ○○ ○○ ○ ○ ○ ○ ○, but returned on September 12, 2007. On October 19, 2007, Nonindicted Co. 1 again accepted an application for approval for parcelling-out with the average sale price of KRW 8.6 million ( KRW 30,830,00, KRW 39, KRW 8530,00, KRW 62:90,000). However, on October 23, 2007, Nonindicted Co. 1 received an application for approval for parcelling-out to ○ ○ ○ ○ ○.

5) When the approval of the sale in lots is delayed, Nonindicted 2 asked Nonindicted 3 to help the Defendant who requested the construction as the owner of the apartment. On October 28, 2007, Nonindicted 3 told Nonindicted 2 that the average sale in lots would fall short of the Defendant’s will about KRW 8.390,00 of the average sale in lots, and that the sale in lots would be approved upon the submission of the application for approval of the sale in lots in accordance with this amount (in this regard, Nonindicted 3 and Nonindicted 6 stated that the average sale in lots from the Defendant would be approved KRW 8.39,00,00,000 from the Defendant, and that Nonindicted 3 and Nonindicted 6 stated that the average sale in lots would be approved by the Defendant at the time of the approval of the sale in lots. Nonindicted 3 and Nonindicted 6 stated that there was no authority to approve the sale in lots at the time of the final approval (the chief of the building in ○○○ at the time of the sale in lots to Nonindicted 360,000).

6) On October 28, 2007, Nonindicted 3 asked Nonindicted 2 to prepare a provisional contract for the construction work that Nonindicted 2 would have to take place, and Nonindicted 2 asked Nonindicted 3 to demand prior execution of KRW 1 billion out of KRW 2 billion that the Defendant would have received from Nonindicted 2. Nonindicted 2 responded to the purport that it would be difficult to execute the advance payment of KRW 1 billion and that it would be possible to sell the infrastructure in aground. As such, Nonindicted 2 told Nonindicted 3 to the effect that it would be difficult to approve the sale of the building work if Nonindicted 3 would be difficult, and Nonindicted 2 made an appraisal to the effect that Nonindicted 3 would have received a statement from Nonindicted 207 to October 2007, which would have been 200 billion in advance of the amount of construction work to be KRW 8 billion in consideration of the fact that Nonindicted 3 would have received a statement from Nonindicted 2, 300,000,000 won in advance of the amount of construction work to be KRW 1.5 billion.

7) On October 28, 2007, Non-Indicted 2 demanded Non-Indicted 5 to make a provisional contract and to make a promise of KRW 1 billion at the beginning, while Non-Indicted 2 demanded Non-Indicted 3 to approve the usual sale price of KRW 8,390,00,00,000, the first instance asked Non-Indicted 3 to change the statement that it is as is, but the demand of Non-Indicted 3 is not acceptable. In addition, Non-Indicted 3’s infrastructure construction will be unconditional. In addition, Non-Indicted 3’s infrastructure construction will be unconditional. The second instance requested Non-Indicted 3 to change the statement that it is as is.

8) On October 29, 2007, Non-Indicted 5 made a talk with the Defendant while talking with Non-Indicted 2, and Non-Indicted 2 showed an unexpected response to Non-Indicted 2 by the end of whether the Defendant “dominate”, Non-Indicted 5 said that the sale price was the same as 8.290,000 won, and that he would make every effort to make it possible for the Defendant to make the sale price rapidly.

As of the same day, Non-Indicted 2 asked Non-Indicted 10 to “Non-Indicted 26th day of October,” which is a gold day, to conclude the conclusion, but did not make a notification. Non-Indicted 10 said that the average sales price per ordinary day was KRW 8.39,00,00, and that the Defendant was aware that he would give an answer by the gold day, and that the Defendant was badly bad.

9) On November 5, 2007, Nonindicted Company 1 entered the average selling price of 8.39 million won (30:7.65 million won, 39:8350,000 won, and 62:890,000 won) and received an application for approval for parcelling-out again to ○○○○○○○○. The approval for parcelling-out was made on November 6, 2007.

10) At the end of 2007 or at the beginning of 2008, Nonindicted Party 2 made a statement to the effect that 20 persons will be aground for the infrastructure construction to the Defendant ( Nonindicted Party 5, a defendant, made a statement to the effect that, on November 10, 2009, Nonindicted Party 2 made a statement to the effect that, “At the end of 207, Nonindicted Party 2, including the defendant and the principal, told 3 persons, such as the defendant, etc., to the end of 2-3 times during the period of 2007, 200, 20, 20, 20, at the same time as of the end of 207 or at the beginning of 200, 20, 20, and 30, 30, the defendant and the principal, etc., were aground (20,000,000,000).”

11) Around December 2008 or around January 2009, Nonindicted Party 2 said that it would be well treated as a contract for an excessive appropriation of construction cost, reflecting Nonindicted Party 3’s payment to the Defendant, and Nonindicted Party 3 confirmed that it was himself.

12) On May 8, 2009, Nonindicted Co. 1 concluded a contract between Nonindicted Co. 3 and Nonindicted Co. 4, a representative director, for the construction cost for the road works among the infrastructure works ordered by Nonindicted Co. 1, which was ordered by Nonindicted Co. 1, which was KRW 13.79,400,000,000 among which the construction cost was excessive as a bribe for delivering to the Defendant.

13) Nonindicted 6 heard that Nonindicted 3 had entered into a contract for work with Nonindicted Company 1, and around that time, he was personnel in the Republic of Korea to the effect that the Defendant is a senior member of the political party. The Defendant stated that “A large enterprise to Nonindicted 3 would not be free from the accounting because the monthly amount of KRW 1-200 million can be deducted,” and Nonindicted 6 sent this end to Nonindicted 3.

(B) Determination

According to the above facts, the defendant is fully aware of the fact that the defendant committed with the non-indicted 2 to accept a bribe of KRW 2 billion in relation to the authorization and permission work of the project for the construction of the Gandong apartment executed by the non-indicted 1 corporation at the latest in the second half of 2007.

(3) Determination on the receipt of KRW 100 million through Nonindicted 5

(A) In full view of the following circumstances acknowledged by the evidence duly adopted and investigated by the lower court, the fact that the Defendant received KRW 100 million out of KRW 2 billion from Nonindicted 2’s bribe received from Nonindicted 2 through Nonindicted 5 is sufficiently recognized in the same manner as the facts charged.

1) The source of funds of KRW 100 million, which Nonindicted 2 delivered to Nonindicted 5, is verified in a substantial part.

Nonindicted 2 stated to the effect that “The KRW 50 million, among KRW 100 million delivered to Nonindicted 5,000, was in his possession, and the remaining KRW 50,000,000 is the money borrowed from Nonindicted 31 on March 2008 or on April 1, 2008.”

However, in March 208 or April 2008, there were many cases where Nonindicted 2 actively performed external activities as the president of the ○○○-si Sports Association in need of cash under the pretext of encouragement, etc. In addition, around February 2008, Nonindicted 2’s statement that Nonindicted 31 was in custody of KRW 30 million or KRW 40 million in one’s house at the time when Nonindicted 31 was found to have received approximately KRW 10,000 from Nonindicted 31 officially around February 208. In addition, Nonindicted 31 was requested to lend KRW 50,000 to Nonindicted 2 at the time when Nonindicted 2 stated that “The fact that some of the money withdrawn from each account under the name of Nonindicted 54,55 was lent twice, and that it was supported by submitting a financial transaction report to Nonindicted 493-493-4939, 493-4939-4939.”

2) The Defendant appears to have been aware of KRW 100 million, which Nonindicted Party 2 had been executed in advance.

In the court of the court below, Nonindicted 3 stated that “Nonindicted 2 was first executed by Nonindicted 2, 100 million won, so he returned this request, and Nonindicted 6 confirmed that Nonindicted 2 was a fact-finding (2 right 887 pages of the trial record).” In addition, Nonindicted 6 stated in the prosecutor’s office that “Nonindicted 2 was first executed by Nonindicted 3, 100 million won, and the Defendant borrowed KRW 100 million from Nonindicted 2” (2 right 99 of the investigation record) and repeated statements to the same effect in the court of the court of the court below (3 right 1302 pages of the trial record).

However, there is no evidence to acknowledge that there was a separate monetary transaction between the Defendant and Nonindicted Party 2 in addition to KRW 100 million, which was stated by Nonindicted Party 2 as a part of the agreed bribe 2 billion won, and Nonindicted Party 6 delivered the horses from Nonindicted Party 3 in relation to KRW 100 million as they were to the Defendant. Thus, the KRW 100,000, which the Defendant expressed that he borrowed from Nonindicted Party 2, means KRW 100,000,000,000,000,000,000,000 won, which was first executed by Nonindicted Party 2.

3) We agree with the fact that Nonindicted 2 made an early confession of KRW 100 million to protect Nonindicted 5, as well as the fact that Nonindicted 2 made an advance confession.

In the prosecution investigation on October 15, 2009, Nonindicted 2 made a statement to the effect that, through Nonindicted 5, the Defendant expressed his intention to accept a bribe of KRW 2 billion through Nonindicted 5, and that Nonindicted 2 concluded a contract for Nonindicted Company 4 by appropriating the construction cost in excess of the construction cost, the Defendant made a confession on October 21, 2009 to the effect that there was no money paid to Nonindicted Company 4, other than the money that was included in the construction cost paid to Nonindicted Company 4, and that Nonindicted 2 made a prior execution of KRW 100 million to the Defendant through Nonindicted 5 on October 21, 2009. In addition, the statement was made that one of the reasons for the late confession was that it was the same as that for the damage to Nonindicted 5, who was familiar 5, was the same as that for the late confession (No. 2, No.

In light of the fact that Non-Indicted 2 and Non-Indicted 5, which appear in the record, are not limited to the participation in the crime of bribery promise, and if it is revealed that Non-Indicted 5 performed a considerable role in the actual criminal act of bribery bribery, the responsibility for the crime should be unlimited, and in light of the social experience of Non-Indicted 2, the awareness about the degree of the crime would have been sufficiently known, the confession of Non-Indicted 2's 100 million won advance execution statement is acceptable as a substitute.

4) It is difficult to deem that Nonindicted 2 got KRW 100 million by deceiving Nonindicted 3.

Nonindicted 2 said that Nonindicted 5 or Defendant would be directly identified in the course of demanding the return of KRW 100 million out of KRW 2 billion to be delivered to Nonindicted 3 (No. 2 book No. 5184 of the investigation record).

However, Nonindicted Co. 4 operated by Nonindicted Co. 3 was due to Nonindicted Co. 1’s request from Nonindicted Co. 5 to Nonindicted Co. 2 for the execution of road works among the infrastructure works of the Geaeadong apartment. In addition, Nonindicted Co. 3 was aware of the final approval in the process of the sale approval, and thus, Nonindicted Co. 2 had no choice but to recognize that the relationship between the Defendant and Nonindicted Co. 3 was very close. Ultimately, Nonindicted Co. 2 thought that if Nonindicted Co. 3 made a false statement about KRW 100 million, it would have been considered that this fact was a gold-free day in the process of Nonindicted Co. 3’s confirmation against the Defendant. Under such circumstances, it would not be easily understood in light of the empirical rule that Nonindicted Co. 2 told Nonindicted Co. 3 about the pre-execution of KRW 100 million until the end of confirming the Defendant’s suspicion against Nonindicted Co. 3.

5) The assertion that Nonindicted 2, 6, and 3 conspired, or that Nonindicted 6, and 3 deceptiond Nonindicted 2 is merely a vague doubt.

In full view of the files in which the conversation between Nonindicted 2 and Nonindicted 6 was recorded (A07, A024) and other evidence submitted by the prosecutor, it is difficult to deem that Nonindicted 6, 3, and 2 conspired to set excessive construction cost and attempted to deduct it from it.

On the other hand, as a person who is in the position of the general president of the ○○○ City Sports Association, Nonindicted 2 was in the position of the president of the ○○ City Sports Association and maintained a considerable amount of friendship by holding a private meeting other than the formal meeting in the event site, etc., but it is also unlikely that Nonindicted 3, who is aware of such fact, in collusion with Nonindicted 6, attempted to acquire the amount equivalent to the excessive appropriated construction amount by deceiving Nonindicted 2 in collusion with Nonindicted 6.

6) It is also confirmed that Nonindicted 3 paid KRW 100 million to Nonindicted 2.

around September 2009, Non-Indicted 3 stated that at the daily food house near the gambling hotel located in Gangnam-gu Seoul, Gangnam-gu, Seoul, Non-Indicted 3 transferred one color room containing KRW 100 million in cash to Non-Indicted 2, and Non-Indicted 2 also acknowledges this fact.

In addition, the non-indicted 35, a director of the non-indicted 4 company, stated that he created cash several times from June 2009 to September 2009, which was after the payment of the construction cost was made from the non-indicted 1 company, and that the non-indicted 34 purchased by the non-indicted 34, the director of the non-indicted 4 company, and delivered it to the non-indicted 3 (the non-indicted 35 stated that he created cash KRW 100 million over three occasions and delivered it to the non-indicted 3), and the non-indicted 34 stated that he purchased one examination color around May 28, 200 and around June 26, 2009, he supported the non-indicted 3 and 2's statements.

7) The fact that Nonindicted 2’s statement is a return after prior enforcement of a bribe of KRW 100 million does not go against the empirical rule.

Since Nonindicted 2 provided the Defendant with KRW 100 million by adding his own personal money to KRW 50 million, Nonindicted 2 may choose a method of overappropriating the construction cost to KRW 1.9 billion and returning KRW 50 million through Nonindicted Company 1 when concluding the contract with Nonindicted Company 4.

However, in consideration of the accounting burden of Nonindicted Company 1, Nonindicted Party 2, once he paid the construction cost to Nonindicted Company 1 and then returned KRW 100 million to Nonindicted Company 3 via Nonindicted 3. In addition, it is difficult for Nonindicted 2 to have doubt that Nonindicted 3, who concluded a contract with the help of the market owner, the defendant or the defendant, may not return the KRW 100 million to himself differently from the promise, and it seems that Nonindicted 3, who concluded the contract with the help of the defendant or the defendant, selected the method of safely returning KRW 100 million.

(B) Ultimately, the lower judgment that found the Defendant guilty of this part of the facts charged is justifiable, and contrary to the Defendant’s assertion, the lower court did not err by misapprehending the legal doctrine on the credibility of the statement, or by misapprehending the facts contrary to the rules of evidence. This part of

(4) Determination on the receipt of KRW 100 million through Nonindicted 6

(A) In full view of the following circumstances acknowledged by the evidence duly adopted and investigated by the lower court, the fact that the Defendant received KRW 100 million out of KRW 2 billion from Nonindicted 2’s bribe received from Nonindicted 2 through Nonindicted 6 in the same manner as the facts charged is sufficiently recognized.

1) Nonindicted 6’s statements are consistent and specific.

Nonindicted 6 made a concrete and consistent statement on the grounds that Nonindicted 7 was granted KRW 100 million to Nonindicted 7 from the prosecutor’s office to the court of the court below. On November 1, 2009, when he was subject to the first investigation by the prosecutor’s office on November 1, 2009, Nonindicted 6 stated the time of delivery of KRW 100 million as “the first policeman of July 2009” is deemed to have arisen from the limitation of human memory, and it is difficult to view that

2) The statements made by Nonindicted 6 also conforms to the monetary statements made by the Defendant, Nonindicted 6, and Nonindicted 7 before and after the date of the crime.

공소외 6은, 2009. 8. 14. 피고인에게 전화하여 공소외 3이 전할 것이 있다고 하니 사람을 좀 보내 달라고 하였더니 2009. 8. 16. 공소외 7이 피고인이 보낸 사람이라고 하면서 자신에게 2회 전화하였고, 주거지인 서울 동작구 사당동 ▷▷아파트 앞 상가 부근에서 공소외 7을 만나 1억 원이 담겨 있는 검정색 가방 1개를 공소외 7에게 건네주었다고 진술하고 있다.

However, in fact, Nonindicted 6 called the Defendant on August 14, 2009, around 14:55, and around 13:52 on August 16, 2009, the Defendant called Nonindicted 7 to Nonindicted 6 on the same day, around 14:08 on the same day, and around 14:08 on the same day, and Nonindicted 7 called Nonindicted 6 on the mobile phone in the name of Nonindicted 36 around 15:31 and around 17:01 (the fact that Nonindicted 7 knew Nonindicted 6’s phone number, and the fact that Nonindicted 6 called the Defendant on August 16:40 on August 17, 2009, support the credibility of Nonindicted 6’s statement (the Investigation Record 2:7:648,649,6452, and 6626).

3) On the other hand, Nonindicted 7’s statements are inconsistent and are difficult to recognize their credibility.

A) In light of the prosecutorial office of Nonindicted 7, which Nonindicted 6 considered as the sender of KRW 100 million, and the contents of the statement at the court below and the process of reversal thereof, the following are examined.

First of all, on November 2, 2009, Nonindicted 7 denied that there was no fact about Nonindicted 6 at the time of the first investigation by the prosecution, and the prosecutor reversed the statement that there was a fact that Nonindicted 6 had been interviewed with Nonindicted 6. In addition, as to the circumstances in which Nonindicted 6 met with Nonindicted 6, Nonindicted 7 changed to one’s own house while Nonindicted 6 had to talk as an employee at the time of Nonindicted 6’s talking about an important talk, and the situation in which Nonindicted 6 met with Nonindicted 6, who was found in the office of Nonindicted 6, tried to look back to the prosecution for Nonindicted 6 to death of the Defendant, and later, he made a statement that he made a speech (No 6503, No. 6505 of investigation record 2 book 7, No. 6505).

Nonindicted 7 maintained the above statements at the time of the second and third investigations by the prosecution (in the court of the court below, Nonindicted 7, at the second interrogation protocol of the prosecution, prepared a written statement stating that “I think I think I think I would like to have a crime that I would like to know that I would like to know, under the direction of the defendant, that I would like to deliver it to the defendant. I would like to say I would like to know, after the arrest, that I would not be able to properly locked and it was difficult to conduct an investigation, and that I would like to look at the situation that would be quickly difficult, and that I would like to know, at the end of the prosecutor's questioning, that I would like to directly make a statement (3rd right 1408, 1420 of the trial record), and that I would like to know that I would like to know that I would like to know that I would not speak in the relationship between Jin and Nin, in terms of the relationship between Nin and Nin,” and that I would like to see the right of investigation record(28888).

한편 공소외 7은 원심 법정에서, ‘2009. 8. 16. 공소외 6을 만난 것은 피고인의 부탁으로 자신이 2008년 10월경 ♤♤당 공소외 37 의원을 고발하였던 사건의 고발장을 건네주기 위한 것이었고, 정치적으로 굉장히 민감한 사안이어서 검찰에서 사실대로 이야기하기 어려웠다. 당시 공소외 6으로부터 피고인에 대하여 검찰 내사가 진행 중이니 조심하라는 말도 들었다’고 진술하였다(공판기록 3권 1396-1397쪽, 1401쪽, 1424-1426쪽).

B) However, for the following reasons, Nonindicted 7’s statement is difficult to believe as it is.

① At around 13:52 on August 16, 2009, Nonindicted 7 made a statement that Nonindicted 6 metd Nonindicted 6, who was Nonindicted 6, and concealed the fact that Nonindicted 36 was called Nonindicted 6’s phone phone number (portable phone number omitted) that was used by the Defendant at the time, and was called a phone number of the Defendant. Accordingly, the prosecutor asked Nonindicted 7 on the basis of the fact that the above phone number was stated on the back page of the ○○ market secretary, and then called the Defendant’s phone number. In addition, Nonindicted 7 returned Nonindicted 36 Nonindicted 6’s personal phone that was made by Nonindicted 36’s personal phone that was used while Nonindicted 7 met Nonindicted 6 and was returned to Nonindicted 36 after Nonindicted 6’s occupational necessity, and Nonindicted 36 changed his statement that Nonindicted 6 did not have any fact to the effect that he was able to get rid of (see e.g., two books of investigation record, 7.625).

② In the accusation claiming that Nonindicted 7 delivered Nonindicted 7 to Nonindicted 6 on August 16, 2009, Nonindicted 7 had already been accused of Nonindicted 37 on September 17, 2008 of Nonindicted 7’s violation of the Political Funds Act and the Public Official Election Act, the first prosecutor’s office in 2009 issued a decision of non-guilty charges. However, in order for Nonindicted 7 to deliver this accusation, it is difficult to readily understand that Nonindicted 6 was found from 00 to 00, Seoul, and that Nonindicted 7 was only Nonindicted 6. Furthermore, it is difficult to find a reasonable reason that the Defendant, who is an external third village, was detained on November 5, 2009 after being investigated as a suspicion of acceptance of bribe. However, it is difficult for the prosecutor’s office to find any reasonable reason that the Defendant did not make any statement at all at all, and only made a statement in the court.

3) It is difficult for Nonindicted 6 to find any other reason separate from Nonindicted 7.

Nonindicted 6 had never met Nonindicted 7 on or before August 16, 2009, and had no contact with each other (Nonindicted 7 claimed that Nonindicted 6 was the intention at the first public prosecutor’s office to know Nonindicted 6 well, and had a general investigation with Nonindicted 6. Nonindicted 6. Nonindicted 6 did not answer to Nonindicted 7, who was asked Nonindicted 7 “I know well well?”

In addition, if Non-Indicted 6 was simply intended to call a talk about internal investigation by the prosecution, it could be sufficiently informed of such contents while making a telephone conversation with the defendant on August 14, 2009, and there was no need to inform the defendant of the internal investigation by making the defendant send a person, and then there was no need to inform the defendant of the internal investigation by the prosecution.

Ultimately, it is difficult for Nonindicted 6 and Nonindicted 7 to find reasons separately for delivery of a bribe, in addition to the purpose stated by Nonindicted 6.

4) It is also confirmed that Nonindicted 3 paid KRW 100 million to Nonindicted 6.

around August 10, 2009, Non-Indicted 3 stated that Non-Indicted 6 gave one color of verification containing KRW 100 million in the office of Non-Indicted 4. The statement of Non-Indicted 6 also complies with this, and Non-Indicted 35 and Non-Indicted 34, such as the statement of the above paragraph (3) (A) (6), are supporting this.

5) It is difficult to deem that Nonindicted 6 received KRW 350,000 from Nonindicted 3 as the full-time loan.

Nonindicted 3 delivered KRW 250,000 to Nonindicted 6 three times between June 2009 and September, and KRW 100,000 among them raised out of Nonindicted 35 through Nonindicted 35, and the remainder KRW 150,000,000 was borrowed and arranged from Nonindicted 38, the birth. In addition, it is confirmed that the said KRW 250,000 was appropriated to the shortage of money, such as Nonindicted 6’s statement.

Meanwhile, it is difficult to find out the reason why Nonindicted 6 and Nonindicted 3 made a false statement that they made a statement about the said monetary transaction of KRW 250 million from the standpoint of Nonindicted 6 and Nonindicted 3, and that they attempted to conceal the monetary transaction of KRW 100 million, and that they delivered KRW 100 million to the Defendant as a bribe.

Whether the above KRW 250 million can be seen as pure loans like Nonindicted 3 and 6’s assertion, apart from whether it can be seen as pure loans, the Defendant’s assertion that Nonindicted 6 appropriated the entire tax fund by receiving additional KRW 100 million from Nonindicted 3 in addition to the above KRW 250 million.5 million, is merely a vague doubt.

6) There is little possibility that Nonindicted 7 may cause an accident of delivery.

Nonindicted 7, as an external car of the Defendant, is a person who was trusted by the Defendant by actively conducting an election campaign and taking charge of property registration when the Defendant was going out of the election of the ○○ market. In addition, on July 20, 2006, immediately after the Defendant was appointed as the ○○ market, Nonindicted 7 established a business entity selling office equipment such as computers and other devices and installed the office in the building where the ○○○○○○ View was located (it refers to the place where the Defendant used as the election office at the time of going out of the ○○ market) and was supported by Nonindicted 6, which was not visible by the Defendant, such as a transaction with the ○○○○○○ View. Moreover, Nonindicted 6 was very close to the Defendant, and Nonindicted 6’s contact contact information was known to Nonindicted 7.

Nevertheless, the probability that Nonindicted 7 received KRW 100 million from Nonindicted 6 and did not deliver it to the Defendant is extremely low.

(B) Meanwhile, the defense counsel pointed out the illegality of the prosecutor’s emergency arrest against Nonindicted 7 through the supplement of the reasons for appeal as of January 13, 2011, and disputes over the admissibility of each prosecutor’s interrogation protocol against Nonindicted 7.

This is only a new argument that is not included in the grounds of appeal, and there is no circumstance to deny admissibility of evidence when considering both the situation and circumstances of emergency arrest against Nonindicted 7, which are shown in the record, and the investigation process after emergency arrest.

(C) Ultimately, the lower judgment that found the Defendant guilty of this part of the facts charged is justifiable, and it cannot be deemed that there were errors as alleged by the Defendant. This part of the Defendant’s assertion is unacceptable.

E. Determination of the acceptance of a third party against Nonindicted Co. 4

(1) The legal interest of the crime of bribery under the Criminal Act is the fairness of the performance of duties by a public official, trust in the society, and the uncertainty of the performance of duties by a public official. Therefore, in the crime of bribery to a third person under Article 130 of the Criminal Act, the "illegal solicitation" is not only the content of unlawful or unfair performance of duties, but also the solicitation that connects the performance of duties to a certain quid pro quo relationship and grants the consideration for the performance of duties, even if the performance of duties is not illegal or unjust (see Supreme Court Decision 2004Do3424, Jun. 15, 2006, etc.).

(2) 위 라.(2)의 (가)항과 같은 인정사실에다가, 원심이 적법하게 채택·조사한 증거들에 의하여 인정되는 아래와 같은 사정들, 즉 ① 공소외 2는, 피고인이 공소외 5를 통하여 공소외 3의 기반시설공사 수주를 부탁한 2006년 12월경에는 사업승인 또는 사업부지에 관한 지구단위계획구역 결정을 앞두고 있었으므로 원활한 사업 진행을 위하여 피고인과 우호적인 관계를 유지할 필요성이 있었던 점, ② 공소외 2는 원래 공소외 3을 전혀 알지 못하였고 피고인의 부탁이 아니라면 굳이 100억 원이 넘는 대규모 도로공사를 공소외 3이 운영하는 공소외 4 회사로 하여금 담당하게 할 합리적인 이유를 찾기 어려운 점, ③ 피고인의 측근인 공소외 5는 공소외 6을 잘 알지도 못하면서 2009. 10. 28. 검찰 최초 조사 시에는 ‘고양시 ◈◈◈당 지구당 위원장을 하던 공소외 6의 소개로 2007년 봄 무렵에 공소외 3을 알게 되었고 2007년 6월 또는 7월경 공소외 3을 공소외 2에게 소개하여 주었다’고 허위 진술을 하는 등(수사기록 2책 5권 5622-5623쪽) 공소외 3의 도급계약 체결과 관련하여 무엇인가 감추려고 한 정황이 나타나는 점 등을 더하여 보면, 피고인이 공소외 1 회사의 ◇◇◇◇◇아파트 건설사업과 관련하여 편의 제공을 부탁받고 공소외 1 회사로 하여금 공소외 4 회사와 사이에 그 기반시설공사 중 도로공사에 관한 도급계약을 체결하도록 한 사실을 충분히 인정할 수 있다.

(3) Ultimately, the lower judgment that found the Defendant guilty of this part of the facts charged is justifiable, and it cannot be deemed that there was any error as alleged by the Defendant. This part of the Defendant’s assertion is

F. Determination on the acceptance of a third party against Nonindicted 9

(1) In addition to the following circumstances acknowledged by the court below and duly admitted and investigated by the above paragraph (d)(2)(A), the court below and the court below, it can be acknowledged that the defendant received an unlawful solicitation, such as the above paragraph (2) and through Nonindicted 2, made Nonindicted Company 8 enter into a contract for the operation of an on-site restaurant in the Antarctic apartment complex with Nonindicted Co. 9 around December 5, 2007, thereby allowing Nonindicted Co. 9 to provide property benefits, such as the right to operate the on-site restaurant.

(A) We agree with Nonindicted 2’s statement concerning the right to operate an on-site restaurant.

On October 23, 2009, Non-Indicted 2 (A07 recording files) recorded the contents of conversation with Non-Indicted 3 at the prosecutor’s office, and subsequently made a statement about some additional facts concerning the offering of a bribe to the Defendant, Non-Indicted 2 also stated a part of the site restaurant in the process of making a statement. In addition, considering the limitation of human memory and the fact that Non-Indicted 2 himself/herself did not intervene in the actual process, such as entering into a contract, except for the case where Non-Indicted 30 makes a verbal request for assistance, the circumstances leading up to such additional statement are fully acceptable.

(B) The credibility of Non-Indicted 2’s statement against the meeting in January 2007 is recognized.

In January 2007, Non-Indicted 2 made a statement to the effect that “The defendant does not have the right to operate the restaurant at the construction site of Gyeyangdong, Dokdong, Dok-si, Dok-si, Dok-si, Dok-si, Dok-si, Dok-si, Dok-si, Dok-si, Dok-si, Dok-si, Dok-si, Dok-si, Dok-si, Dok-si, Dok-si, Dok-si, Do-si, Do-si, Do-si, Do-si, Do-si, Do-si, Do-si, Do-si, Do-si,

As Nonindicted 2’s statement, Nonindicted 5 and 9 also recognize the fact that only four people met with the Defendant. However, in consideration of the fact that it is difficult for Nonindicted 9 to find any reasonable other circumstances that Nonindicted 9 ought to join this space (the Nonindicted 5 stated that it was not memory for the reason that Nonindicted 9 was present at the trial) and that according to the schedule prepared by Nonindicted 18, the Defendant’s secretary Nonindicted 9, Nonindicted 2, as the Defendant’s secretary, there was a fact that Nonindicted 2 directly found the ○○ market room on January 12 and 18, 2007 that Nonindicted 2 asked for a request from the Defendant in relation to the right to operate the restaurant (33620, 3623 pages of investigation record 1 book 3620, 3623 pages of investigation record), Nonindicted 2’s statement is highly reliable.

(C) Nonindicted 9’s statement on the circumstances in which the on-site restaurant was operated is difficult to believe.

While denying the fact that Nonindicted 9 requested the Defendant to operate the on-site restaurant, Nonindicted 9 made a statement to the prosecutor around December 2006 or around January 2007 that he requested the on-site restaurant to Nonindicted 5 (see, e.g., Supreme Court Decision 2: 6: 5957, Sept. 6, 2007). In the court of original trial, Nonindicted 2 directly met Nonindicted 2 and asked Nonindicted 2 to request the on-site restaurant (see, e.g., Supreme Court Decision 1603Du1603).

Non-Indicted 9’s statement is not consistent, but it is also difficult to understand that Non-Indicted 9 himself/herself did not have any particular friendship with Non-Indicted 2, and he/she directly asked Non-Indicted 2 to a field restaurant rather than the close relation.

(D) There is a motive for the Defendant to assist Nonindicted 9 to operate an on-site restaurant.

Around February 2006, the Defendant asked Nonindicted 9 to directly assist Nonindicted 9 in conducting an election campaign at the ○○○ market, and Nonindicted 9 took place in collusion with the Defendant’s election campaign, etc. [The Nonindicted 9 respondeded to the prosecutor’s question as to what he received in return for an election campaign for the Defendant at the prosecutor’s office that he received in return for an election campaign on behalf of the Defendant, “I have the right to operate the ○○ restaurant” (the 2nd 6nd 5961 pages of the investigation record)].

On the other hand, in the case of Nonindicted 2, it is difficult to find the reason to help Nonindicted 9 operate the on-site restaurant by requesting Nonindicted 8 to Nonindicted 30, which is an executor, in the absence of any specific friendship with Nonindicted 9, in the absence of the Defendant’s request.

(2) Ultimately, the lower judgment that found the Defendant guilty of this part of the facts charged is justifiable, and it cannot be deemed that there were errors as alleged by the Defendant. This part of the Defendant’s assertion is unacceptable.

3. Determination on the part related to the crime related to the apartment construction project implemented by Nonindicted Company 13

A. Determination on the acceptance of a third party against Nonindicted 11

(1) Comprehensively taking account of the following circumstances acknowledged by the court of the political party and the evidence duly admitted and investigated by the court below, it can be acknowledged that the Defendant received illegal solicitation in relation to the deliberation of the △△ apartment city planning conducted by Nonindicted Company 13, and that Nonindicted Co. 39, an affiliate of Nonindicted Co. 13, made Nonindicted Co. 11 enter into a contract for the operation of the △△△ apartment site restaurant with Nonindicted Co. 11 on January or February 2008, thereby allowing Nonindicted Co. 11 to provide a property interest, i.e., the right

(A) Nonindicted 11’s statement on the circumstances in which a cafeteria was operated is difficult to believe.

1) 공소외 11은 검찰에서 ‘2007년 가을경 공소외 14에게 부탁하여 현장식당을 운영하게 된 것이지 피고인에게 부탁한 적이 없다’는 취지로 진술하였다가(수사기록 1책 2권 2870쪽), 원심 법정에서는 ‘2007년 가을경 ◈◈◈당 ○○시 지구당 위원장인 공소외 40이 먼저 조그마한 현장식당을 한 번 해 보지 않겠냐고 제안하였고, 그 무렵 공소외 14도 똑같은 제안을 하면서 현장식당을 지어주겠다고 말하였다’고 진술하였다(공판기록 5권 2555쪽).

2) However, at around November 2009, Nonindicted 11 prepared a fact-finding confirmation as to the developments leading up to the operation of an on-site restaurant upon the Defendant’s request. However, the above fact-finding document only states that “Nonindicted 14 was friendly with Nonindicted 14 and asked Nonindicted 14 to request the on-site restaurant,” and does not mention Nonindicted 40 at all. Unlike the court statement in the court below, it is difficult to find the reasons why Nonindicted 40 did not mention Nonindicted 40 in the above fact-finding confirmation document.

In addition, regarding the pro rata relationship with Nonindicted 14, unlike the aforementioned confirmation document, the prosecutor’s investigation is not in a way consistent with Nonindicted 14, but in a way different from each other. Local constituency is also different. The local constituency is not. (i) the statement (No. 1 book 2, 2870 pages) or the statement (no. 1 book 2, 2870 pages), “Nonindicted 14 members,” and the statement was made to be a personnel or a member and a member of the court, who will be identified, and (ii) the statement was made to be a member of the court, and (iii) the statement was made to be a member of the court (No. 5741 pages of investigation record 1 book 5,5741 page), and (iv) the statement was made to be one of the private events, and (v) the statement was made to be that Nonindicted 14 was able to operate a restaurant on the spot, even if there was no particular relationship with Nonindicted 14 and 14.

Furthermore, on December 2, 2008, Nonindicted 11, as a witness, calls with Nonindicted 41, the Defendant’s wife prior to the initial appearance at the prosecution on December 2, 2008, and at the time of the prosecutor’s investigation, Nonindicted 11, as well as Nonindicted 41, who did not want to talk about the Defendant. There is a human nature, and the private placement is a large number of people who are responding to the request. He knows that he is “I am.........., he knows that I are the Domine of the other party in his politics..” This is suspected to include any intention to increase the Defendant in the course of acquiring the right to operate the on-site restaurant, rather than to include any intention to raise the Defendant as if the Defendant did not intervene.

(B) There are circumstances in which the Defendant participated in the operation of the on-site restaurant by Nonindicted 11.

around October 2007, Nonindicted 14 stated that Nonindicted 11 made a statement to Nonindicted 11 that Nonindicted 11 would be the personnel of the Defendant in connection with the operation of the on-site restaurant at an event site at ○○○○ City, and Nonindicted 11 also recognized the facts that he heard (Article 1, 2, 2875, 3, and 3195 of the Investigation Records). If Nonindicted 14, irrespective of the Defendant, he/she voluntarily assisted Nonindicted 14 to acquire the right to operate the on-site restaurant, it is difficult to find any particular reasonable ground for Nonindicted 11 to say that he/she will be the personnel of the Defendant.

In addition, according to the schedule written by Nonindicted 18, on February 14, 2007, Nonindicted 11 and Nonindicted 40 visited the Defendant’s ○○ market room in sequence (at least 3633 pages of investigation records), on July 10, 2007, Nonindicted 42-A (at least 3682 pages of investigation records 1, 3682), and on November 7, 2007, Nonindicted 11 visited the ○ market room (at least 1, 3718 pages of investigation records). In particular, Nonindicted 11 visited the Defendant and the Defendant of the interview market on March 27, 2008 (at least 1, 3718 pages of investigation records).

(C) As to the facts that Nonindicted 14 transferred to Nonindicted 14 upon Nonindicted 11’s request for the Defendant’s right to operate the on-site restaurant immediately after the visit to ○○○○○○○○, Nonindicted 14 all the statements made by Nonindicted 14, 19, and 17 are consistent, and it is difficult for Nonindicted 14 to find the reasons why Nonindicted

According to the statement by the majority of Nonindicted 14, 19, and 17, Nonindicted 19, who was an employee of Nonindicted 13 in charge of the △△△ apartment construction business, requested Nonindicted 14 through Nonindicted 17, who introduced Nonindicted 14 when the urban planning deliberation schedule was delayed, to help Nonindicted 14 belong to the deliberation schedule. Accordingly, Nonindicted 14 visited Nonindicted 19 to meet the Defendant at around September 2007, along with Nonindicted 19; Nonindicted 14, together with Nonindicted 14, sent the Defendant to Nonindicted 19, who was waiting for the parking lot immediately after the market room, divided the Defendant’s only and talk to Nonindicted 19; Provided, That it is recognized that at that time, the Defendant sent the Defendant’s request to grant Nonindicted 11 the right to operate the △△△ apartment apartment site, and that Nonindicted 17 also told Nonindicted 14 to the same purport.

그런데 공소외 14의 경우 공소외 11과 별다른 친분이 없는 점, 공소외 14는 ◐◐◐의회 도의원으로서 만약 공소외 11의 현장식당 운영권 취득에 반드시 도움을 주어야 하는 상황이었다면 굳이 피고인의 부탁인 것처럼 가장할 필요성이 높지 않은 점 등을 고려할 때 공소외 14가 공소외 19의 청탁을 피고인에게 전달하게 된 것을 기화로 하여 마치 피고인이 부탁한 것처럼 즉흥적으로 거짓말을 하여 공소외 19로 하여금 공소외 11에게 현장식당 운영권을 주도록 하였다고 상정하기는 어렵다(공소외 14는 검찰 제4회 조사 시까지 공소외 19의 청탁을 전달하기 위하여 피고인을 만나러 간 사실이 없다고 진술하거나 또는 공소외 19와 대질조사를 받으면서도 피고인을 만나러 가기는 하였으나 피고인이 부재 중이어서 만나지 못했다는 취지로 진술하였다. 그러나 이는 공소외 14 본인이 공소외 13 회사로부터 수수한 2억 원의 대가성을 부인하기 위하여 피고인과 만난 사실을 숨기려고 하였기 때문인 것으로 보인다).

(D) There is a motive for the Defendant to assist Nonindicted 11 to operate an on-site restaurant.

공소외 11은 피고인이 2004년에 국회의원 선거에 출마하였을 때 선거운동을 도와 준 사실이 있고, 2006년 ○○시장 선거 시에도 ◈◈◈당 ○○시 여성위원장으로 선거운동을 하는 등 당선에 도움을 준 사실이 있다.

(E) The contents of Nonindicted 18’s schedule or the removal of Nonindicted 11’s site restaurant do not interfere with the recognition of this part of the facts charged.

In the second investigation conducted by the prosecution, Non-Indicted 18 stated, “I do not state any person who has not been satisfing the market owner, and if I try to make an attempt to write all persons who visit the market, but are unable to memory, I do not mention.” (No. 4027 pages) In the third investigation conducted by the prosecution, Non-Indicted 18 stated, “I need to conclude that I can make a prior visit to the market without reservation or have a telephone conversation any time for people who visited the market without reservation even if they are not stated in the schedule of gold days prepared by the end-time statement.” (No. 5 books, No. 5918 pages). Considering that Non-Indicted 14’s statement made by Non-Indicted 18 as above, Non-Indicted 14 visited Non-Indicted 14 at the ○○ market as an Do Council member, it cannot be readily concluded that Non-Indicted 14’s visit was made only on the ground that Non-Indicted 14’s visit was not entered in the Defendant’s market around 1007 years.

In addition, the removal of the on-site restaurant operated by Nonindicted 11 as an illegal building is formally accepted by the civil petition documents, and the Defendant was not in doubt of any other choice than the execution of duties in accordance with the law, and such fact is not contrary to the fact that the Defendant assisted Nonindicted 11 to acquire the right to operate the on-site restaurant (in this regard, Nonindicted 14 appears in the court and the prosecution of the court of the lower court that “ Nonindicted 14, who supported Nonindicted 40, instead of Nonindicted 11 supported Nonindicted 43 and provided the Defendant with Nonindicted 40, thereby informing Nonindicted 11 of the on-site restaurant.” If Nonindicted 14’s statement was made, it can be found that Nonindicted 11 was disadvantaged in connection with the operation of the on-site restaurant in this respect).

(2) Ultimately, the lower judgment that found the Defendant guilty of this part of the facts charged is justifiable, and it cannot be deemed that there is any error as alleged by the Defendant. This part of the Defendant’s assertion is

B. Determination of the acceptance of bribe KRW 30 million

(1) Summary of the facts charged

On July 3, 2008, upon Nonindicted 14’s request, the Defendant considered convenience in relation to the construction of △△△ apartment in force at Nonindicted Company 13. Around July 3, 2008, the Defendant only received KRW 200 million from Nonindicted Company 13 in the park near the Defendant’s residence, for solicitation related to the authorization and permission of △△ apartment, from Nonindicted Company 13, and Nonindicted 14 delivered KRW 30 million in cash to the Defendant, stating that “The business of Nonindicted Company 13 is well in business in business in business in business in business in business place.” Accordingly, the Defendant received a bribe of KRW 30 million in return for convenience in the business of authorization and permission of △△△ apartment construction implemented by Nonindicted Company 13.

(2) Determination

(A) In a case where the issue is whether to receive or receive money is the issue, where the Defendant denies the receipt of money and there is no objective evidence, such as financial data to support this, the evidence should be admissible, and in order to acknowledge the Defendant’s conviction, there should be credibility to exclude a reasonable doubt as well as the reasonableness, objective reasonableness, consistency in the contents of the statement. In determining credibility, in particular, in a case where there is a suspicion of a crime against him/her and there is a possibility of the commencement of an investigation, or an investigation is being conducted, the admissibility of the statement may affect the statement, even if there is a suspicion that he/she is suspected of using it, and the admissibility of the statement may be denied, whether there may affect the statement (see, e.g., Supreme Court Decision 2008Do8137, Jan. 15, 2009).

(B) The credibility of Non-Indicted 14’s statement

1) Summary of Nonindicted 14’s statement

The core evidence directly consistent with this part of the facts charged lies in Nonindicted 14’s legal statement, the original court’s legal statement, and the prosecutor’s statement as follows (Nonindicted 14 verified the currency content with the Defendant and Nonindicted 44, who is the principal’s wife, and subsequently embodyed the Defendant’s statement as to the situation at the time of issuing KRW 30 million to the Defendant, which is a summary thereof).

A) Around May 8, 2008, upon receiving KRW 200 million from Nonindicted Company 13, Nonindicted Company 13 received KRW 45 million, and the rest of KRW 160,000 to Nonindicted Company 45,000,000 from ○○○○ City ( Address 2 omitted) was kept in the Defendant’s agricultural machinery warehouse, which is located in the ○○○○○○ City. However, on the ground that his/her father’s wife was unclaimed in the next container box, he/she would have to live in the ground and ask him/her even on the ground, and after dividing the amount of KRW 10,000 and KRW 60,00,000 into KRW 10,000,000, he/she collected money from the Defendant’s agricultural machinery warehouse.

나) 2008. 7. 3. 서울 잠실에서 개최된 ◈◈◈당 전당대회를 다녀와서 일행과 함께 식사를 한 후 친구와 함께 골프연습장으로 가 골프연습을 하였다. 같은 날 21:00경 위 창고 부근에 차를 세우고 부재 중 전화를 확인하니 모르는 전화번호가 남겨져 있고, 또 공소외 44로부터 문자메시지가 와 있었다. 공소외 44에게 먼저 전화를 하자 피고인이 집으로 전화하였는데 급한 일이 있는 것 같다고 하면서 전화를 해 보라고 말하였다. 이에 따라 같은 장소에서 같은 날 21:02경 피고인에게 전화하자 피고인이 자신이 거주하는 ○○시 원동 대림◇◇◇◇◇아파트 내 ♡♡공원에서 만나자고 하였다.

C) It was immediately adjacent to the above agricultural machinery warehouse that was kept in custody at the time of the above currency, and around June 2008, when the Defendant met at the event site, it was thought that the Defendant stated that “at the time when the Defendant met, Nonparty 13 companies would have come well to contact.” However, it was put into the shopping bags in the above agricultural machinery warehouse, where the Defendant 30 million won in cash, out of the money left by cutting down the floor’s soil by hand.

라) 피고인을 만나러 가면서 2008. 7. 3. 21:13경 공소외 44에게 전화하였고, 약속장소인 위 ♡♡공원에 도착하였는데 피고인이 없었다. 3천만 원이 있는 관계로 차량에서 내리지 않으면서 같은 날 21:20경 피고인에게 전화하였더니 거의 다 왔다고 하면서 농구골대 앞으로 오라고 하였다. 잠시 후 피고인이 걸어오는 것이 보여서 차에서 내려 농구골대 앞 벤치로 가서 피고인을 만났다.

E) At the time, the talks about Nonindicted 46 members of the Defendant, the general election, and the Defendant’s re-election, etc. were divided. The Defendant, while speaking that “Do Do Do and Do 13 members of the election, Do Do 13 members of the election, Do 13 members of the election of the Defendant, was placed on the floor between events where the Defendant and the Defendant are seated. Around the Hague Do 2008, the Defendant took out the internal talk about Nonindicted 47. Accordingly, around July 3, 2008, the Defendant said that Nonindicted 47 were called as Nonindicted 47, and that Nonindicted 47 was not informed, and that it was handed down to the Defendant (in the first time, Nonindicted 14 did not memory the contents of Nonindicted 47’s currency, and stated the contents of Nonindicted 47 and the telephone conversations from the prosecution’s investigation from December 22, 2008).

바) 다음날인 2008. 7. 4. 08:45경 ◐◐◐의회로 출근하던 중 피고인에게 두 차례 전화했다. 처음에는 통화연결이 잘 안됐고, 재버튼을 눌러 피고인과 직접 통화를 하였다. 당시 특별한 내용 없이 ‘어제 별 일 없이 잘 들어갔느냐’는 취지로 대화하고 전화를 끊었고, 피고인의 비서와 통화한 사실은 없다.

2) Determination

Nonindicted 14 has made a very detailed statement about the situation at which the bribe was given to the defendant, but there is a question as follows.

A) At the time when two months elapsed after Nonindicted 14 received KRW 200 million from Nonindicted Company 13 on May 8, 2008, Nonindicted 14 did not seem to have any 30 million Won from the Defendant.

공소외 14는 2008년 5월은 농사철이어서 집안 농사일을 돕느라 시간이 없었고, 2008년 6월은 ◐◐◐의회 회기가 끝나고 유럽으로 10일 정도 연수를 다녀와 시간이 없었기 때문에 피고인에게 돈을 주지 못하였다고 진술하였다. 그러나 공소외 14 본인의 진술에 의하더라도 2008. 6. 2.을 비롯하여 2008년 6월 한 달 동안에만 각종 행사 장소에서 피고인을 6회 정도 만났다는 것인데(수사기록 1책 3권 3032-3033쪽) 그와 같이 피고인과 자주 만나는 기회가 있었음에도 불구하고 무려 두 달 동안 3천만 원을 교부하려고 시도조차 하지 않고 있다가 늦은 시간에 피고인으로부터 전화 1통을 받게 되자 갑자기 3천만 원을 주어야겠다고 결심하고 이를 바로 실행하였다는 것은 다소 이례적이다.

B) Considering Nonindicted 14’s political career, it is too harsh to prepare for the possibility that the grant of KRW 30 million may be exposed to the event.

공소외 14는 2002년 7월경부터는 ○○시의회 시의원으로, 2006년 7월경부터는 ◐◐◐의회 도의원으로 활동을 한 정치인으로서 피고인에게 3천만 원을 교부하였다는 2008. 7. 3. 당시에는 이미 정치경력이 약 6년 정도에 이르렀다. 비록 쇼핑백에 현금을 넣어 눈에 띄지 않게 하였고, 오후 9시가 조금 넘은 시간에 피고인과 만났다고는 하나 피고인을 잘 아는 주민들의 왕래가 예상되는 피고인의 거주지 부근 공원에서 피고인을 만나기로 하면서 3천만 원을 준비하여 가고 나아가 공원 벤치에 함께 앉아 있다가 이를 그대로 건네준다는 것 역시 쉽게 이해되지 않는다(피고인과 공소외 14가 대화를 나눈 벤치에서 피고인의 주거지까지는 약 93m 떨어져 있고, 피고인으로서는 자신의 주거지로 가기 위해서 공원의 중앙 부분을 가로 질러서 걸어가야 한다).

C) There is a probable probability that Nonindicted 14 did not enter the said agricultural machine warehouse in light of Nonindicted 14’s mobile phone calls.

공소외 14가 공소외 13 회사로부터 받은 돈을 보관하였다는 창고는 ○○시 ‘청호동’에, 공소외 14가 피고인과 만난 ♡♡공원은 ○○시 ‘원동’에 각 위치하고 있고, 그 거리는 약 2km 떨어져 있다.

그런데 2008. 7. 3. 당시 공소외 14가 사용한 휴대전화기 통화내역자료(수사기록 1책 2권 2899쪽)의 기재에 의하면, 공소외 14가 3천만 원을 꺼내기 직전에 위 농기계창고 부근에서 하였다는 공소외 44에 대한 전화(같은 날 21:00경 발신) 및 피고인에 대한 전화(같은 날 21:02경 발신)와 피고인을 만나러 가면서 하였다는 공소외 44에 대한 전화(같은 날 21:13경 발신)의 발신site가 모두 ○○시 ‘원동’으로 나타나고, 또 공소외 14가 약속장소인 위 ♡♡공원에 도착하여 피고인에게 하였다는 전화(같은 날 21:20경 발신) 및 피고인을 만난 상태에서 위 ♡♡공원에서 공소외 47에게 하였다는 전화(같은 날 21:38 발신) 역시 발신site가 모두 ○○시 ‘원동’으로 나타나고 있다(변호인이 2011. 4. 14. 참고자료로 제출한 통화기록의 기재에 의하면 2010. 4. 13.경 위 농기계창고 부근에서 전화하였을 때 그 발신site가 ○○시 ‘원동’이 아닌 다른 곳으로 나타난다).

A prosecutor asserts that even if Nonindicted 14 calls in the vicinity of the above farm machinery warehouse located in the Cheongdong-dong, it can be called "originally operated," since the Cheongho-dong and the Cheongdong are geographically adjacent and the base station may overlap with each other depending on the amount of calls around the base station. However, in a criminal trial, it is necessary to provide strict proof as to the facts charged, and in particular, it cannot be readily concluded that Nonindicted 14 called the Defendant and Nonindicted 44 in the vicinity of the above farm machinery warehouse, such as the statement by Nonindicted 14.

Ultimately, there is a doubt as to whether Nonindicted 14 did not have any entry into the above agricultural machinery warehouse that was kept in cash before the Defendant was delivered.

D) The motive behind Nonindicted 14 led Nonindicted 14 to make a confession of the fact that he provided a bribe of KRW 30 million to the Defendant is difficult.

On November 6, 2008, Non-Indicted 14, as the suspect, under the first investigation by the prosecution, was conducted on December 1, 2008, and about one month, which led to the confession of the fact that he provided a bribe of KRW 30 million to the defendant. As to the circumstances, Non-Indicted 14 denied that he made efforts for Non-Indicted 13 with respect to KRW 200 million received from Non-Indicted 13 in connection with Non-Indicted 17 and Non-Indicted 19, who stated the facts about Non-Indicted 17 and Non-Indicted 19, and thought that he will be aware of all of the facts that he did not have any use, and that he would be able to seek a preference (No. 1 book 2823-2824 of the investigation record). The defendant's right of operation in the field should be 300,000,000 if he made statements to Non-Indicted 13 and 384 of the society without mind.

① It is difficult to view that Nonindicted 14 made an additional confession on the fact that Nonindicted 11 gave a bribe of KRW 30,00 to the Defendant for social purification at the request of Nonindicted 14 at the time of Nonindicted 14’s request. ② Nonindicted 14, at the third prosecutor’s investigation on November 14, 2008, stated that “the Defendant would have sent Nonindicted 13’s on-site restaurant to Nonindicted 11, and would be good if the Defendant would have been connected to Nonindicted 13’s on-site restaurant” (one book 1,262 pages) and that Nonindicted 14 was aware of the fact that the Defendant participated in the operation of the on-site restaurant of Nonindicted 111, and that it was difficult to view that the Defendant had concealed the fact that 30,000 won of the bribe was given to Nonindicted 13,000 won at the time of carrying out the investigation on the apartment site of Nonindicted 14, a public prosecutor who continued to use the apartment site of 14,000.

E) Nonindicted 14’s statement on the developments leading up to Nonindicted 56’s delivery is not clearly understood.

During the process of dividing conversationss with the Defendant and the Defendant, Nonindicted 14 reported Nonindicted 56, which was passed in the direction of the next scam, and stated that the Defendant, together with Nonindicted 56, carried out a locking personnel again, and returned to scam (see, e.g., Supreme Court Decision 5674-5, Sept. 5, 2008; Decision 1952-1953, Jul. 3, 2008). On the other hand, the Defendant stated that Nonindicted 14 was only 56, while recognizing the fact that the Defendant had met Nonindicted 14 at night on July 3, 2008, Nonindicted 56 or 57, who was accompanied, had been living near the lower court or the court of first instance, did not coincide with the Defendant at the time of the first scambling.

However, there is no reason to believe that the Defendant did not have any fact about Nonindicted 56 or Nonindicted 57 on the mast that recognizes the fact that the Defendant met Nonindicted 14, and if the Defendant was made the statement of Nonindicted 14, the Defendant was seated in the event near the deaf-gu area, and the Defendant was found to have found Nonindicted 56 that he returned the dog back to the degree of 180∑ 180 and passed, and it is also difficult to understand that the Defendant saw the Defendant as such influent nature in the conversation.

오히려 위 다)항과 같은 공소외 14가 당시 사용한 휴대전화기의 통화내역자료 기재까지 고려한다면 공소외 14가 미리 약속장소인 위 ♡♡공원에 도착하여 피고인의 주거지 앞 부근에서 기다리고 있다가 공소외 56이나 공소외 57을 우연히 만났고, 그 직후 피고인과 통화하는 과정에서 피고인이 농구대 부근 벤치로 오도록 하자 그 곳으로 이동하였을 가능성을 배제할 수 없다(공소외 14가 검찰 조사 과정에서 공소외 56을 만난 사실을 먼저 진술하였다는 사정이 위와 같은 가능성에 방해가 되는 것은 아니다).

F) Nonindicted 14’s statement on the contents of conversation between the Defendant and the Defendant is not reasonable.

Nonindicted 14 stated that Nonindicted 14 had a talk about the Defendant’s general meeting or Nonindicted 46 members, etc., and only around the time when he she saw, the Defendant had a talk about Nonindicted 47 and had a talk about Nonindicted 47. However, there is a doubt as to whether Nonindicted 14 had a talked with Nonindicted 14 at the latest time in order to divide the degree of Nonindicted 14’s speech.

Rather, it is more persuasive that the defendant's defense that the non-indicted 14, who was the chief of the secretary non-indicted 48, was introduced by the non-indicted 14 as his own person's person's person's person's person's person's person's person's person's person's person's person's person's person's person's person's person's person's person's person's person's person's person's person's person's person's own person's person's person's person'

At the time of the lower court’s trial, Nonindicted 14 also stated that at the time of Nonindicted 14, at the time of the lower court’s trial, Nonindicted 14 stated that “the Defendant was the ○○ City or us at the Government Agency, and obtained information about us.” (No. 1950 pages of the trial record) that “The Defendant was ○○ City or us at the Government Agency,” and that this part of the trial record was not in-depth (No. 4950 pages). If Nonindicted 47’s internal prosecutorial office, such as the Defendant’s change in the trial record, was an important conversation between two persons, it is not understood

(C) Sub-decisions

1) Of course, Nonindicted 14 consistently maintained the above statement since it stated that Nonindicted 14 delivered KRW 30 million to the Defendant at the prosecution on December 1, 2008, and made a concrete statement about the situation at the time of delivery of the bribe. ② Nonindicted 14 was a post facto branch of the Defendant and high school, and in particular, with the overall line of 2004, it is very very very very complicated for the Defendant to engage in political activities under the same jurisdiction. ③ Nonindicted 14 was sentenced on March 12, 2009 at the Suwon District Court sentenced on March 12, 2009 for a violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (or Acceptance of 3 million won) and became final and conclusive on March 20, 2009, the judgment of the court below convicting the Defendant of a fine of KRW 30,000,000,000,0000,000,000 won, and the Defendant was also prosecuted and sentenced to a fine of KRW 50,030,030,030.

2) However, in a criminal trial, the burden of proving the facts constituting the crime prosecuted lies with the public prosecutor. A judge ought to admit the conviction with probative value, which leads to the conviction that the facts charged are true beyond a reasonable doubt. Therefore, if there is no such evidence, even if there is a suspicion of guilt against the Defendant, the determination is inevitable (see, e.g., Supreme Court Decision 2002Do5662, Dec. 24, 2002).

3) As indicated in the above (B), Nonindicted 14’s statement is reasonable doubt as it is believed, and other evidence submitted by the prosecutor alone is insufficient to recognize this part of the facts charged.

Ultimately, this part of the facts charged constitutes a case where there is no proof of crime. The judgment of the court below which found the defendant guilty is erroneous by misunderstanding the facts and affecting the conclusion of the judgment. The defendant'

4. Determination on the part related to the crime related to the apartment construction project implemented by Nonindicted Company 15

In full view of the evidence duly adopted and examined by the lower court and the circumstances as stated in the lower court’s holding, the lower court that found the Defendant guilty of this part of the facts charged is justifiable, and it cannot be deemed that there was any error as alleged by the Defendant.

5. Conclusion

Of the judgment of the court below, there is a ground to reverse ex officio as to the violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (Bribery) due to the promise to accept a bribe of KRW 2 billion and KRW 200 million. In addition, the defendant's assertion of mistake of facts or misapprehension of the legal principles as to the violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (Bribery) due to the promise to accept a bribe of KRW 2 billion

However, the judgment of the court below, which found the Defendant guilty of this part of the facts charged and the remaining facts charged as concurrent crimes under the former part of Article 37 of the Criminal Act, sentenced a single punishment. Therefore, without examining the inappropriate sentencing of the Defendant and the prosecutor, the judgment of the court below is reversed in entirety, and the judgment is

The defendant is a person who is in office as the ○○ market from July 1, 2006 and has overall control over various administrative affairs of ○○ City, such as authorization, permission, etc. of apartment business within the jurisdiction.

1. Violation of the Aggravated Punishment, etc. of Specific Crimes Act;

공소외 1 회사는 ○○시 (주소 5 생략)외 43필지 일대 공장부지에 대림이편한세상 공동주택(아파트) 건설사업을 추진하기 위하여 그 시행사로서 2003. 6. 9. 위 일대에 대해 경기도로부터 지구단위계획구역 결정을 받은 것을 비롯하여 2007. 1. 8. ▒▒지구 제1종지구단위계획 결정·고시, 2007. 5. 18. 공동주택건설사업승인, 2007. 11. 6. 분양승인을 순차적으로 받아 2010년 1월 말경 공동주택 준공승인을 앞두고 있었다.

In the process of promoting a multi-family housing project as above, the district unit planning was not determined and publicly announced within three years from the date of determination of the said district unit planning zone, and the said district unit planning zone was invalidated on June 10, 2006 by the National Land Planning and Utilization Act.

On the other hand, while Nonindicted 3, who operates Nonindicted Company 4, was introduced through Nonindicted 6, who maintained a pro-friendly relationship with the Defendant, he requested the Defendant through Nonindicted 6, to receive the orders related to the apartment construction work executed by Nonindicted Company 1, and requested the Defendant to receive the orders related to the apartment construction work directly ordered by Nonindicted Company 1 on or around September 2006 through November 206.

Around that time, the Defendant introduced Nonindicted 5, the neighboring Nonindicted 5, Nonindicted 3 to Nonindicted 2, the former secretary of Nonindicted Company 1, and directed Nonindicted 5 to do so. Accordingly, Nonindicted 5 consented to Nonindicted 2 and 3’s order for the construction of Nonindicted Company 4 operated by Nonindicted 3 from Nonindicted 4, which was located in Pyeongtaek-si as of December 2006.

Meanwhile, between August 2007 and October 2007, the Defendant: (a) from Nonindicted 6, to Nonindicted 6, “Nonindicted 3 assist Nonindicted 1 in connection with the approval for the sale of lots”, Nonindicted 6’s speech that Nonindicted 6 was friendly with Nonindicted 2 cannot be said to have raised the sale price only to Nonindicted 2 because of the written objection at ○○○ City. Since the promise (the delivery of brain water KRW 2 billion) made before Nonindicted 2’s Na Na Na Na Na Na Na Na Na Na, the Defendant’s promise was necessarily observed, and thus, Nonindicted 3 changed the degree of one billion won out of the above 2 billion won to the price for the promise on the future several owners of the construction project; and (b) Nonindicted 3 also delivered Nonindicted 3’s conviction on the completion of the construction project to Nonindicted 39,000,000 won by the end of the last day of 6.39,000.”

Accordingly, between October 2007 and November 2007, Non-Indicted 3 stated, Non-Indicted 2, “Non-Indicted 3 paid KRW 1 billion out of the amount he first promised to approve the sale price as KRW 8.39 billion, and prepared a provisional contract on the construction to be reduced to B. It is a firm intention in the ○○ market.” However, Non-Indicted 2 rejected the said request by changing the procedure for approving the sale price to proceed on two occasions at the time of the application for approval, and Non-Indicted 3 acted to the effect that if the sale price is not approved, the sale price will not be approved.”

around that time, Nonindicted 5 heard Nonindicted 2’s speech that “Nonindicted 3 requests the advance payment of KRW 1 billion out of KRW 2 billion to be paid by the Defendant as above, and demands the preparation of a provisional contract for the construction work.” Nonindicted 5, who talks with the Defendant or the Defendant about the above matters, was able to hear the Defendant’s significance and deliver it again to Nonindicted 2, etc.

After that, as Non-Indicted 5 and 3 of November 6, 2007, the sale price was approved as KRW 8,390,000 in real as the proportion of the non-Indicted 5 and 3 of November 6.

Under the above circumstances, the Defendant had Nonindicted Party 5 contact Nonindicted Party 2 and demanded the advance execution of some of the 2 billion won already promised to contact Nonindicted Party 2, and the Defendant directly contacted Nonindicted Party 2 at that time, and said Nonindicted Party 2 called “domination.”

이에 공소외 2는 피고인의 지시를 받고 자신을 찾아 온 공소외 5에게 2008년 3월 중순경 ○○시에 있는 상호불상의 식당에서 현금 1천만 원, 2008년 3월 하순경 서울 강남구 역삼동에 있는 ●●●● ●●● 호텔에서 현금 4천만 원, 2008년 4월 초순경 ○○시 궐동에 있는 ▲▲▲▲ 일식집 인근에서 현금 5천만 원, 합계 1억 원을 교부하였다.

In addition, around December 2008, the Defendant heard the words “to be aground to the construction cost to be paid to Nonindicted Co. 4, who requested the construction cost of KRW 2 billion to be paid by Nonindicted Co. 2 at the end of the year of the ○○○ City Sports Association, which was held at ○○○○○ City Council members, at the end of the year of the year, and accepted it.”

Accordingly, in early 2009, Non-Indicted 2 paid to Non-Indicted 3 in excess of KRW 2 billion in the construction cost to be paid to Non-Indicted 4 company operated by the political party. It refers to a request to deliver it to ○○ City, and Non-Indicted 3 accepted it.

After that, on May 8, 2009, Nonindicted Co. 4, operated by Nonindicted Co. 3, 2009, entered into a contract with Nonindicted Co. 1, 13.79 billion won (including excess KRW 2.0 billion) for construction work among the infrastructure works ordered by Nonindicted Co. 1, and received a total of KRW 7.7 billion from around that time to September 30, 2009, depending on the work progress.

공소외 3은 2009년 8월경 서울 서초구 서초동에 있는 공소외 4 회사 사무실에서 공소외 6에게 공소외 2로부터 위와 같이 기성고로 지급받은 돈 중 현금 1억 원을 피고인에게 전달해 달라는 명목으로 건네주고, 공소외 6은 2009. 8. 16.경 서울 동작구 사당동에 있는 ▷▷아파트 인근 상가 앞 노상에서 피고인의 지시를 받고 온 피고인의 조카 공소외 7에게 위 1억 원을 교부하였다.

As a result, the Defendant received a bribe of KRW 200 million from Nonindicted 2, a former secretary of Nonindicted Company 1, through Nonindicted 5 and Nonindicted 7, who received the Defendant’s order to give and receive a bribe of KRW 200 million from Nonindicted 1, a former secretary of the Defendant.

2. The point of acceptance of a third party against Nonindicted Co. 4

From September 2006 to May 2009, the Defendant promptly proceeded with the authorization and permission procedures for the above apartment house from Nonindicted Co. 2, former Nonindicted Co. 1, who had operated the apartment house business in the Yangsan-dong of ○○ City, and in particular, upon receiving an illegal solicitation from the effect that the sale in lots would give convenience to Nonindicted Co. 1 in the process of approval, the Defendant ordered Nonindicted Co. 4, a company designated by the Defendant, to undertake road construction works among the infrastructure works ordered by Nonindicted Co. 1, as described in the foregoing paragraph (1).

Therefore, on May 8, 2009, Nonindicted Co. 4, operated by Nonindicted Co. 3, 2009, received the amount of KRW 13.79 billion, including the amount equivalent to the actual construction cost, among the infrastructure works ordered by Nonindicted Co. 1 from Nonindicted Co. 1, 2009, and received KRW 7.7 billion from around that time until September 2009, according to the work completion order.

As a result, the Defendant received the above illegal solicitation from Nonindicted 2 regarding the apartment authorization and permission work, and caused Nonindicted 2 to provide Nonindicted 4 company that operated Nonindicted 3 with property benefits equivalent to the actual construction cost of KRW 11.794 million.4 million.

3. The point of acceptance of bribe to a third party against Nonindicted 9

As above, the Defendant promptly proceeded with the procedure for authorization and permission of apartment business from Nonindicted 2, and in particular, upon receiving an illegal solicitation from Nonindicted Company 1 in favor of the sale price approval process, the Defendant stated that “I would see the box restaurant in the construction site of Yangsandong apartment to Nonindicted 9” at ○○-si’s nearby coffee shop around January 2007.

공소외 2는 2007년 봄 무렵 시공사인 공소외 8 회사 민간사업팀장 공소외 30에게 “함바식당을 운영하려고 하는 사람이 있는데 ♣부장이 좀 도와주어야겠습니다.”고 말하고, 이에 공소외 30은 아파트 건설현장 현장소장인 공소외 49에게 공소외 9를 소개시켜 주었다. 이후 공소외 9는 2007. 12. 5.경 공소외 49와 사이에 ○○시 양산동 대림◇◇◇◇◇아파트 현장식당 운영계약을 체결하였다.

As a result, the Defendant received an illegal solicitation on the affairs of apartment authorization and permission through Nonindicted 2, and let Nonindicted Company 8 provide Nonindicted Company 8 with property benefits, such as the right to operate a restaurant at the site.

4. The point of acceptance of bribe to a third party against Nonindicted 11

The non-indicted 13 applied for the housing construction plan on April 17, 2007, while pursuing the △△△ apartment construction project on the aggregate of 17,174 square meters of 2,174 square meters of underground floors and 12 through 15 stories of 2,000, and approved the housing construction plan on October 16, 2007 from ○○ City, and approved the sale announcement on November 23, 2007 in order, and completed the construction on February 2010.

피고인은 2007년 9월경 ○○시장 집무실에서 ◐◐◐의회 의원이던 공소외 14로부터 공소외 13 회사에서 시행 중인 △△△△아파트 사업과 관련하여 “도시계획심의를 조속히 통과시켜 달라.”는 취지의 부탁을 받았다. 이에 피고인은 공소외 14에게 “공소외 13 회사 아파트 함바식당을 ○○시 새마을부녀회장 공소외 11에게 줄 수 있는지 알아봐 달라.”고 말하였다.

After that, Nonindicted 14 delivered the above intent of the Defendant to Nonindicted 19, the director in charge of the apartment business of Nonindicted Company 13, and Nonindicted 19, as an affiliate of Nonindicted Company 13 on or around January 2008 or around February 2, 2008, had Nonindicted 39 Co. 39, who is in charge of the construction of the apartment, enter into a contract for the operation of the △△△△△ apartment site restaurant with Nonindicted Company 11 and ○○○-dong

As a result, the Defendant received an illegal solicitation on the affairs of apartment authorization and permission, and caused Nonindicted Co. 39 to provide Nonindicted Co. 11 with property benefits, such as the right to operate a restaurant at the site.

5. The point of acceptance of bribe to a third party against Nonindicted Co. 12

The Defendant, around December 2006 or around January 2007, entered the name and cell phone number of Nonindicted 16 in each type of Nonindicted 10, who was in office as the director of the construction division at ○○ City around 2007, and said that “Nonindicted 16 is Snara.”

At around that time, Nonindicted 10 introduced Nonindicted 50 of the accounting division of ○○○ City and Nonindicted 48 in charge of accounting and contracting (hereinafter “Nonindicted 12”) to Nonindicted 16 in charge of the business operations of Nonindicted 12 Stock Company (hereinafter “Nonindicted 12 Company”). From that place, Nonindicted 16 stated that Nonindicted 10 “the construction work in the ○○○ area is changed to another person.” Nonindicted 50 introduced Nonindicted 16 to Nonindicted 10, and Nonindicted 50 stated that “The construction work in the market is close to the ○○ area, and is well Dora,” while introducing Nonindicted 10 to Nonindicted 16.

The non-indicted 15 company promoted the construction project of △△ apartment on the 12-dong, 648 households and 15-storys from the 13 parcels outside of ○○ City ( Address 4 omitted), and obtained the approval of the apartment project plan in December 2005, it was planned to complete the construction on the 2007 commencement and February 27, 2007 with the approval of the parcelling-out on the 2008.

In January 2007, the chief of ○○ City Construction Division, Nonindicted 10 had Nonindicted 22 directors of Nonindicted Company 15 and Nonindicted 22 find out Nonindicted 16 in the Defendant’s form.

around that time, Nonindicted 16 was consented by Nonindicted 22, who found himself, to the effect that “Non-Indicted 16 changed the landscape architecture construction works, civil engineering works, and brine restaurant operation rights of Yeongdong apartment construction works, which will help the approval, etc. of the public announcement of apartment sale,” and that at that time, Non-Indicted 15 consented to the implementation of civil engineering works equivalent to KRW 2 billion by Nonindicted Company 15.

In addition, Nonindicted 12’s representative director, Nonindicted 27, upon the introduction of Nonindicted 16, stated that Nonindicted 27 could not perform the civil engineering work on the ground that Nonindicted 15’s director Nonindicted 22 did not have any profit from the civil engineering work with Nonindicted 22 in the first place. Accordingly, Nonindicted 22 offered that Nonindicted 27 would give Nonindicted 27 an “children’s park creation work” instead of the civil engineering work, and Nonindicted 27 demanded that Nonindicted 22 add KRW 1.5 billion to the construction cost.

Under the above circumstances, the Defendant received the proposal from Nonindicted 23, the president of Nonindicted Company 15, who was found to be a matter of approval of the sale price in the office of the ○○ Viewing market, and accepted the proposal, “I do not know that I would like to give the construction work to Nonindicted 27.”

After that, around May 2008, Nonindicted Company 12 was awarded a contract from Nonindicted Company 15 to KRW 3.5 billion of the cost of the construction for children’s park creation (including value-added tax). On May 26, 2008, Nonindicted Company 12 was transferred to the corporate account of Nonindicted Company 12 as advance payment.

As a result, the Defendant received an illegal solicitation in connection with the affairs of authorization and permission for the △△ apartment project implemented by Nonindicted Co. 15, and caused Nonindicted Co. 15 to provide the property benefits to Nonindicted Co. 12 for the construction of the apartment park.

[Criminal facts stated in the subparagraphs of paragraphs (1) through (3)]

1. Each legal statement of the witness Nonindicted 10 and 5

1. The statement of the witness Nonindicted 3 in the fifth trial record of the court below

1. Each statement made by Nonindicted 31, 30, and 34 of the sixth trial records of the court below

1. In the 7th trial record of the court below, each part of the witness Nonindicted 6 and 7 is written.

1. Each statement made by the witness, Nonindicted 38, 35, and 9 in the 8th trial record of the court below (However, Nonindicted 9 written partial statement)

1. The part of the witness Nonindicted 10’s statement in the 12th trial record of the court below

1. Each of Nonindicted 2 (A07, A013, A017, A024, A027, and A028) Nonindicted 5 (A013, A027, and A028) and Nonindicted 3 (A07, A024), and Nonindicted 10 (A017) stored in the USB submitted on the 16th trial date of the lower court

1. Each prosecutor's protocol of interrogation of each prosecutor's suspect about Nonindicted 2, 5, 3, 31, 30, 6, and 7 on Nonindicted 2, 5, 31, 30, 6, and 7 (including the part of the prosecutor's protocol of interrogation of Nonindicted 7

1. Each part of the prosecutor’s protocol on Nonindicted 5, 3, 30, 34, 38, 35, 9, 52, 10, 51, and 25

【Criminal Facts stated in Paragraph 4 at the Time of Sales】

1. The statement of the witness Nonindicted 19 in the fourth trial record of the court below

1. Each statement of the witness Nonindicted 20 and 17 in the 9th trial record of the court below

1. Part of the witness’s statement in the 10th trial record of the court below

1. Each of the original or copy of the protocol of interrogation of each prosecutor's suspect against Nonindicted 14, 20, and 17 (including the substitute statement)

1. Each part of the original or copy of the prosecutor’s statement concerning Nonindicted 14, 11, 19, and 17 (including the part of the testimony made by the public prosecutor)

【Criminal Facts stated in Paragraph 5 at the Time of Sales】

1. Each statement of the witness Nonindicted 22 and 53 in the third trial records of the court below

1. Each statement made by the witness Nonindicted 23, 24, and 10 in the fourth trial record of the court below

1. Each statement of the witness Nonindicted 25, 16, and 27 in the fifth trial record of the court below (However, the witness Nonindicted 16, and 27 are written in part)

1. The statement of the witness Nonindicted 26 in the sixth trial record of the court below

1. Each of the original or copy of each protocol of interrogation of a suspect by the prosecution against Nonindicted 24, 26, 27, 16, and 23 (including the substitute statement)

1. Each part of the original or copy of the prosecutor’s protocol on Nonindicted 22, 53, 23, 10, 24, 25, 26, and 48 (including the substitute statement)

1. Article relevant to the facts constituting an offense and the selection of punishment;

Article 2 (1) 1 of the Act on the Aggravated Punishment, etc. of Specific Crimes, Article 129 (1) of the Criminal Act [the occupation of and the punishment for a limited term shall be selected, and the maximum punishment shall be 15 years prescribed by the main sentence of Article 42 of the former Criminal Act (amended by Act No. 10259, Apr. 15, 2010). Meanwhile, a fine shall be imposed concurrently pursuant to Article 2 (2) of the Act on the Aggravated Punishment, etc. of Specific Crimes, but the amount of the accepted money, which serves as the basis for calculating the amount of the fine, shall be limited to KRW 100,000,000,000,000,0000 won, which is the amount of the accepted money after December 26, 2008, which

1. Aggravation for concurrent crimes;

Articles 37 (former part of Article 37, Article 38 (1) 2, and Article 50 of the Criminal Act [Aggravation of concurrent crimes to imprisonment with prison labor as provided for in the Act on the Aggravated Punishment, etc. of Specific Crimes (Bribery) with the largest

1. Discretionary mitigation;

Articles 53, 55(1)3, and 6 of the Criminal Act (Consideration of positive sentencing factors, etc. among the following grounds for sentencing):

1. Detention in a workhouse;

Articles 70 and 69(2) of the Criminal Act

1. Additional collection:

The latter part of Article 134 of the Criminal Act

1. The adverse factors of sentencing;

Local autonomy system is introduced through a national agreement to realize grass-puri democratic politics, to efficiently check power through a sound check and balance between the central government and local governments, and to ensure that local residents' lives can be substantially improved through the most customized administration consistent with the characteristics and needs of the community.

The enormous powers conferred upon the head of a local government should be exercised solely on behalf of the local residents who selected him or her, so far as they are derived from the local residents who selected him or her. An administration that loses trust may cause unnecessary misunderstanding and conflicts and impair the sound development and growth of society. Accordingly, the head of a local government should only engage in administration in the spirit of fairness while maintaining a high moral and integrity with a strong sense of responsibility.

The Defendant, as the head of the ○○○ City, was the head of the local government, and committed the instant crime by abusing the poor status of an event without any choice to be active in the selling price, timing of sale, etc. for the smooth promotion of the project in the course of performing the duties related to the authorization and permission of the apartment construction project. The Defendant committed the instant crime throughout the period of

As a result of the Defendant’s commission of crime, the damage caused to ○○○○ City administration by causing unrefluence and confusion, which ultimately led to the entire ○○ citizens, and furthermore, it took a significant level of measures against the people in a transparent and fair society. Moreover, the crimes such as using a method of excessive appropriation of construction cost in the process of receiving bribe as well as a bribe amounting to KRW 200,000,000 received by the Defendant.

Nevertheless, the Defendant took advantage of his wrongful conduct and her scambling, and was able to ○○ citizens who believed and selected themselves, and were able to have been gathered from Nonindicted 6, etc. who was one’s own side, and argued that he was responsible for the concealment of his criminal conduct, and that he was responsible to the Defendant for all of his responsibility. In addition, there seems to be a circumstance in which the Defendant attempted to distort the fact by exercising influence on the relevant persons during the investigation process.

Considering the seriousness of the above case, the social harm and danger of the crime, attitude after the crime, etc., the criminal liability of the defendant is very heavy and strict sentencing is necessary.

2. Positive factors of sentencing

Meanwhile, in the case of the crime of bribery of KRW 200 million, the Defendant did not first demand a bribe to Nonindicted 2, and there is no evidence to prove that there was a direct economic benefit to the Defendant because he did not refuse the request of relative relatives or relatives in the case of the crime of bribery of KRW 200 million, and there is no evidence to prove that there was a direct economic benefit to the Defendant, and that there was no criminal history against the Defendant, etc.

3. Results of applying the sentencing criteria; and

The sentencing guidelines for the crimes of violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (Bribery) for which the sentencing guidelines are set among the crimes of this case are seven years of imprisonment (where the brain amount is at least KRW 100,000 but less than KRW 500,00): the basic area of types 5 (where the brain amount is at least KRW 100,000, but less than KRW

On the other hand, since the sentencing guidelines have not yet been set in the case of the crime of bribery to a third party, if the majority of the sentencing guidelines for concurrent crimes in the former part of Article 37 of the Criminal Code is applied, the lower limit is seven years of imprisonment with prison labor, which is the lower limit of the sentencing range in the case of the violation of the Act on the Aggravated Punishment,

In addition, the sentencing range of the sentencing guidelines recommended for the portion of imprisonment is seven years and one year and three months (in the case of the portion of the fine, the sentencing guidelines have not yet been set for the portion of the fine).

4. Conclusion

In full view of all the sentencing factors expressed in the arguments in this case, including the defendant's age, career, character and conduct, environment, and family relationship, together with the above sentencing factors, the sentence shall be determined within the scope of sentence recommended in the sentencing guidelines, such as the order.

1. Violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (Bribery) due to promise to accept a bribe of two billion won;

The summary of this part of the facts charged against the Defendant is as described in Section 2.C(1).

As stated in the above 2.C. (2), this part of the facts charged falls under the case where there is no proof of crime, and thus, the acquittal should be pronounced. However, since the conviction of the violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (Bribery) due to the bribery of KRW 200 million, which is related to the crime

2. Violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (Bribery) due to the bribery of KRW 30 million;

The summary of this part of the facts charged against the Defendant is as described in Section 3.B(1).

As stated in the above 3.B. (2), this part of the facts charged constitutes a case where there is no proof of crime, and thus, is acquitted.

Judges Maximum Pung (Presiding Judge)