2013No404 Acceptance of bribe

Kim** (56-1 ** Institute Auditor

Seoul Dong-gu, Do-dong (-dong, * apartment)

Both parties

He/she has lodged an interference, the whole of which has been tried.

Attorney Park So-young

Daejeon District Court Decision 2013Gohap101 Decided August 14, 2013

January 15, 2014

The judgment of the court below is reversed.

The defendant shall be innocent.

The summary of the above judgment shall be publicly announced.

1. Summary of grounds for appeal;

A. Defendant

(1) misunderstanding of facts

Although there is a fact that the defendant had reached 00 millions at the time and place stated in the facts charged, it was refused to offer a shopping bag containing cash to the defendant, and there is no fact that the defendant received a bribe.

2) Unreasonable sentencing

The sentencing of the lower court (one year and two months, additional collection 20 million won) is too unreasonable.

(b) A prosecutor;

The sentencing of the court below is too unjustifiable.

2. Judgment on the defendant's assertion of mistake of facts

A. Summary of the facts charged

From July 23, 2008 to April 30, 2009, the Defendant served as the President of Korea*** (hereinafter referred to as the “Institute”) and had been in charge of controlling and controlling pseudo petroleum distribution at the management office * from May 21, 2012 through the former president, etc. * from May 21, 2012 * from the management office head office * from May 23, 2012.

The defendant, around August 2008, provided ***** Gu** Ri** in that ***** ** the head of Dong with drinking and response several times from the Lee 00 operating the gas station, which recommended that the representative National Assembly member of 00 who was provided with drinking and response to drinking and response to drinking and drinking in a million won, as he was fluenced about her so that he was fluenced (the defendant) and that he was fluced about about 14:0 on August 14, 2008, Gangnam-gu Seoul ** * - Dong * * 00 on the same day on the same day on the same day on the same day on the same day on the same day as that of regulating information, and received KRW 200 on the same day as a request for the provision of regulating information.

Accordingly, the defendant accepted a bribe in relation to the public official's duties.

B. The judgment of the court below

In full view of the following circumstances, the Defendant’s statement 00 that he gave a bribe is reliable, while the Defendant’s statement denying this is difficult to believe, thereby recognizing the facts charged as a crime.

① The Defendant, in the initial prosecutor’s statement, denied this 00 only once without a permanent domicile, and denied that he had been aware of the objective facts related to the Defendant only several times after the statement was presented. The Defendant reversed the statement that he had become aware of the fact in the process of operating the gas station thereafter.**** The fact that he made an investment in the gas station operation business in which he has operated the gas station ** because he has borrowed 200 million won with this money, it was completely denied that he has only lent her to the public prosecutor’s statement in the Yong-Nam (or when she is to receive money to the low-income) which is in the Republic of Korea, and that she has given her opinion that he has no objective condition that he would benefit any more than that of the bank until he has used the gas station as a result of the operation of the gas station.

1. ② The Defendant, as an executive officer of the Institute, invested in the gas station operating business (Y*, U.S., U.S., * from June 2005 to jointly operating the oil station) that has been engaged in the joint control business, but he was aware of in the course of carrying out the joint control business ** the large amount of KRW 200 million around May 2006 *** [in May 2001, he was punished as a violation of the Petroleum Business Act by selling similar gasoline 1 million (Seoul District Court Decision 2001Da3480)] that has been engaged in the same business, and invested in the oil station operating business (Y*, U.S., oil* from June 2005 to May 201 to receive approximately KRW 20 million from May 14, 201).

1 ③ 이 사건 범행 당시 **관리원의 경인지사장이었던 피고인은, 전임자인 김 ## 이 2001년경 이00으로부터 단속정보 제공과 관련하여 뇌물을 받은 혐의로 집행유예를 선 고받아 **관리원에서 파면되었고, 이를 계기로 유사석유 유통업자인 이00 이 **관리원 임직원들 사이에 널리 알려지게 되어, 유 **으로부터 이00을 소개받을 당시 이00이 어떠한 사람인지 잘 알고 있었을 것으로 보이는데도, 이러한 비리 전력이 있는 이00 등과 어울리며 수차례에 걸쳐 룸살롱 등에서 향응을 제공받는(피고인은 룸살롱 2차까 지 갔다가 이를 좋아하지 않아 그냥 귀가하였다고 신뢰할 수 없는 주장도 하고 있다 ) 등 친분을 쌓았고, 당시 서울에서 주유소를 운영하는 이00을 위하여 서울 지역 주유 소에 대한 단속권한이 있는 **관리원 서울지사장 손 ** 을 소개시켜 주기도 하였다( 이후 손** 은 이00에게 단속정보를 제공하고 뇌물을 받은 혐의로 구속기소되어 재판을 받고 있다).

④ Although the Defendant alleged that this case’s report rejected a bribe, if so, 00 was immediately accused of this case’s accusation to an investigation agency or at least 00 after that day, the Defendant appears to have been more than 2 and 3 times even after the instant crime was committed.

⑤ 한편 뇌물을 건넨 이00은, 최초 검찰 진술에서는 자신의 범행을 부인하였으나 이후 번의하여 이 사건 범행을 포함하여 **관리원 직원들, 경찰관 등에게 뇌물을 제공 한 사실을 자백하였는데, 이 자백진술이 단서가 되어, **관리원의 전북본부장인 오 * 은 처음 범행을 부인하다가 총 2,500만 원의 뇌물을 받은 사실을 모두 자백하고 구속기소 되어 1심( 이 법원 2013고합100)에서 유죄판결을 선고받았고, **관리원의 과장 박 ** 도 마찬가지로 처음 범행을 부인하다가 총 2,000만 원의 뇌물을 받은 사실을 모두 자백하 고 구속기소되어 1심( 이 법원 2013고합116)에서 유죄판결을 선고받았으며, 손 ** 은 전 체 뇌물액수 2억 1,000만 원 중 4,000만 원을 받은 혐의를 인정하고 구속기소되어 1심 재판을 받고 있고, 경찰관인 김 $$ 은 전체 뇌물액수 1,400만 원 중 500만 원을 받은 혐 의를 인정하고 역시 구속기소되어 1심 재판을 받고 있다.

⑤ The instant case also entered into an investigation as the proviso of this 00’s statement, and this 00 was replaced by the Defendant’s card at the time when the Defendant delivered a bribe to the Defendant in 2008. At the time, the Defendant was receiving the shopping bags containing money, and the Defendant’s vehicle was in color observers, and the Defendant stated that he operated the gas station jointly with *, note*, and note that the above contents were most true, and the contents of the statement were consistent as well as the detailed contents of the statement.

Moreover, as seen in the facts that this 00 had been given a bribe to the Defendant, etc., it seems that there is no reason to view that there was no doubt that the prosecution has committed a minor punishment and would be obtained by making a false statement or by making a false statement. Furthermore, this 00 stated that this 00 had been given a false accusation in 2008 after receiving money by the Defendant.* this * operating * * the note that the Defendant provided a false accusation 2 times, but the actual *** the gas station was judged to have a quality conformity in the enforcement on September 5, 2008.

7) At the time of committing the instant crime, the Defendant alleged that there was no reason to receive bribe from 00 because he was in office as a recognition president at the time of the instant crime, and there was no authority to regulate 00 of her operating a gas station in Seoul. However, this0 seems to be sufficient to encourage the Defendant to offer a bribe since he was aware that the Defendant was giving her control information about the gas station that he had operated with **,*, etc., and that she was in need of help in operating a gas station in Gyeonggi-do in the future. In particular, ** * in the transaction of control information, the relationship with the officials *** in terms of her relationship with the officials ?*** after the instant crime, the Defendant was informed of her information on the gas station and the horse control, ******* at the time of the instant crime, the President of the Seoul District Court ** he introduced the Defendant to her.00.

C. Judgment of the court below

1) Relevant legal principles

The establishment of facts constituting a crime in a criminal trial ought to be based on strict evidence with probative value, which leads a judge to have the degree of uncompetence in a reasonable doubt. Thus, in a case where the prosecutor’s admission does not sufficiently reach the degree of sufficient conviction, even though the defendant’s assertion or defense is contradictory or uncompetied, it should be determined in the interests of the defendant even if there is a doubt of guilt, such as the defendant’s non-defluence, etc. (see Supreme Court Decision 2005Do767, Apr. 15, 2005, etc.).

On the other hand, in the case of bribery, where the defendant, who was designated as the receiver of the bribery, denies the fact of the bribery at the time of the acceptance of the bribe, and there is no evidence such as financial materials to support the bribery, there should be evidence, and there should be credibility enough to exclude reasonable doubt as well as the reasonableness, objective reasonableness, consistency before and after the statement, etc. In determining credibility, there should be not only the rationality, objective reasonableness, etc. of the inside of the statement itself, but also his human beings, and in particular, there is a concern about the suspect's suspicion of a certain crime and there is a possibility that the investigation may be commenced, or the investigation is being conducted, if the statement is not admissible to the extent that the evidence of the statement is denied, it should also be examined (see Supreme Court Decision 200Do5701, Jun. 11, 2002).

2) Determination on evidence relations

In light of the following circumstances, it is difficult to view that it was proven beyond the doubt that the Defendant received money and valuables from 00, and that it was sufficiently proven that the Defendant received a bribe as shown in the facts charged.

A) Whether the defendant introduced this 00 grandchildren**

This 00 is that the defendant is in charge of the border president, and the defendant does not have a position to provide control information in the case of a gas station in Seoul area, but the defendant can provide control information even through other employees, and may introduce employees of the competent department. In fact, the defendant was introduced by the defendant * the President of the Seoul branch * the defendant at the time of introduction and consistently stated in substitution (the trial record 46 pages, the investigation record 34 pages, etc.).

On this issue, the defendant vindicates that he was not in a position to introduce ** because he was not in a son** because he was not in a relationship with him, * also became aware of 00 at the meeting place with the investigation team of the police station** The defendant was in a position to become aware of 100 in the first place, and there was no defendant, and * the defendant was in a core position or an important role as a liquor within the police station * * * he was stated that he was not in a position to have a conversation with the defendant because he was not in a position to do so (the second trial date of the trial of the court) and this is inconsistent with the statements of 00.

In addition, the investigative agency stated to the effect that the defendant was given a bribe * her hand * her hand *. However, the court below changed the statement that the defendant was given a bribe prior to the case (the trial record 50 pages). This is a description of the reasons why the bribe was given, and it is difficult to conclude that such a change of statement was a mere mistake of memory.

Therefore, it is still unclear whether or not the defendant has given 100 son* * the introduction of the defendant, but 1) 00 son* * as one of the major conveniences obtained from the defendant, this is a circumstance in which there is doubt about the overall credibility of this 00 statement.

B) Whether the Defendant provided control information

(1) As to the failure to use a borrowed-name telephone

This 00 stated that there was a fact that there was a provision of money and valuables to the defendant and received control information from the defendant, but the defendant did not create a tea phone, and he was given a personal phone control (the trial record 53 pages). This is different from that of creating a tea phone and receiving control information through this, * the manager * or hand * the manager * the manager *, etc. * by creating a tea phone and receiving control information through this, and it is not confirmed as objective data such as the details of the defendant's telephone.

This 00 stated that it was thought that the defendant would have prepared a tea phone when he was prepared for his gas station in the above area (the trial record No. 53 pages), but * The fact that the defendant, a manager executive officer, was using a personal phone that could have been easily discovered while providing control information to the brode of the control information of the defendant.

(2) Whether the Defendant was able to access control information

*** The KNG personnel lecture* According to the original testimony of the court below, if there is a large large number of 2 public prosecutors, and the head of the branch office mainly received post-report without directly controlling pseudo petroleum products, and obtained approval on the enforcement plan, it is recognized that it is difficult for the head of the branch office to understand the enforcement information. It is also doubtful whether the Defendant was able to actually provide the enforcement information because it is very bad natural so that the Defendant might have been able to provide the enforcement information.

(3) this transmission of enforcement information ** As to the testimony

** The fact that enforcement information has been provided from 00 to 00 is recognized at the court of the first instance, but it is stated that such enforcement information has been known to anyone, and this** the testimony alone cannot be confirmed as to whether or not the defendant has provided enforcement information.

(4) Sub-decisions

Therefore, it is difficult to affirm whether the defendant actually provided control information to 00.

C) Circumstances in which the defendant has settled meal costs

*** The defendant's statement is consistent with 00 for the fact that he has completed a meal service with 255,00 won by his own credit card (the trial record 79 pages).

On the other hand, the prosecutor asserts to the effect that the defendant's attempt to provide brain water falls short of the amount of meal costs and paid it to him/her, while the prosecutor reported it as an indication of mathy (see, e.g., Investigation Record 142)

It is somewhat rare that a person who gives a bribe puts a bribe to the person who gives or receives a bribe without paying the meal cost, and there was no other circumstance in which the Defendant paid the drinking or the boomed value in the south of 00 prior to that time (in the investigation record, page 142). However, even if a person pays the meal cost with a marking of the horse in a situation where a bribe is given or received, it is not natural that he/she would use his/her credit card at the risk of receiving a bribe at the same time and at the same time use the same risk. Rather, it is naturally understood that the Defendant paid the meal cost with a strong expression of his/her intention to refuse to provide a bribe.

D) Circumstances revealed in ** that the Defendant refused money or valuables.

The defendant's refusal to offer money and valuables 00 stated that he disclosed the fact that EO attempted to give a bribe to ** by telephone and criticizes 00, and *** also stated that the defendant made such a statement in the original court of trial (the trial record 68 pages) and there are no circumstances to suspect the statement **.

After the case confirmed by the statement* the defendant's wife supports the possibility that the defendant did not receive money.

E) The motive for the false statement of 00

Kim Jong-young, an intermediate roman who received enforcement information from 00 and delivered it to the oil station in the first instance trial, stated to the effect that this 00 was the first instance trial of the party branch ** from among the management staff, the defendant, Do*, distribution**, etc., that if the problem arises later due to the lack of appraisal of the defendant, Do*, etc.

In addition, there has been a deficit in the gas station in around 00 and 2010, * was the position that it is difficult to answer due to the relation between 00 and 00, and there is no statement unfavorable to 00.

In light of the fact that the defendant stated that he did not want to do so on the attitude referred to in the defendant, and that he stated that he did not want to do so on a human basis (in the trial record 54 pages), it is difficult to exclude the possibility that this00 has made false information for the purpose of receiving a prior notice in the malicious sentiment of the defendant and his criminal case 2).

3) Other circumstances cited by the lower court as the grounds of conviction

A) Defendant’s attitude of statement

It was true that the defendant was aware of this 00 in the course of investigation, whether he was sleeped with this 00, whether he was slicked with this 00, whether he was slicked with him, and whether he had invested in the gas station. However, in light of the fact that the defendant was aware of the fact that the investment in the gas station is inappropriate, it cannot be readily concluded that the defendant received money and valuables solely on the basis of the fact that the defendant did not want to clarify such fact itself as natural ones, and that the defendant appears to be somewhat unslicked in the stage of investigation.

B) The lower court cited the fact that the Defendant did not immediately file an accusation against the investigative agency about 00 as soon as the Defendant refused to accept money and valuables, and that the Defendant had been aware of the body of 00 and 2 and 3 times after the Cheongdogary house, as the grounds for recognizing the Defendant guilty. However, it is natural that the Defendant did not notify the investigative agency of the fact that the Defendant, even though having been aware of the body of 00, was a very inappropriate body, and there is no evidence to confirm other than the statement of 00, where it is difficult to believe that **00 after the Madogary house was passed.

C) The following circumstances cited by the lower court as indirect facts supporting the facts charged, namely, (i) the Defendant invested in the gas station, (ii) made an investment in the gas station with the knowledge of the body of 00, and (iii) provided meals in the Cheongsium; and (iv) the fact that the 00 was identified as the subject of bribe offer * the manager, employees, police officers, etc. were indicted and convicted, and there are objectively confirmed parts of the 00 statements, which were stated in this 00 statements, are likely to be true, but it is difficult to view that the Defendant’s statement is a conclusive support for the receipt of money or valuables.

4) Sub-determination

In full view of the above, even though the evidence submitted by the prosecutor alone cannot be deemed to have been proven to the extent that there is no reasonable doubt as to the fact that the Defendant received money from this00, the lower court’s judgment that found the Defendant guilty was erroneous and adversely affected the conclusion of the judgment by misapprehending the fact.

3. Conclusion

Therefore, the grounds for appeal on the mistake of facts by the defendant are legitimate. Thus, the judgment of the court below is reversed in accordance with Article 364(6) of the Criminal Procedure Act without omitting the determination of the defendant and the prosecutor's grounds for appeal on the mistake of facts.

Parts of innocence

The summary of the facts charged in the instant case is as seen earlier, but it constitutes a case where there is no evidence of a crime as seen earlier, and thus, is acquitted pursuant to the latter part of Article 325 of the Criminal Procedure Act.

The principal offender (Presiding Judge)

Freeboard

Freeboard Kim Dong-dong

1) The purport that 00 means that her grandchildren* at the time of the first arrival* her grandchildren at the time of the first arrival* The same as the fashion model where 'the fashion model' was made that her uniforms are good.

The defendant stated that he has made a statement (147 pages 147 of investigation records), grandchildren* also made such statement, but only such fact is the defendant.

It is not recognized that she has introduced her hand**.

2) In connection with the control of pseudo petroleum products, this00 is offered a bribe to the police officer in charge and** the management staff and received control information on all defense.

A. He was under investigation by suspicion of so-called "col funeral service", which is delivered to the station of a day, and Daejeon District Court's assistance to such suspicion.

The court of appeal was sentenced to three years of imprisonment with prison labor and was sentenced to a judgment in this court on the same day (Seoul High Court 2013No533).