2016No3589 Violation of the Act on the Aggravated Punishment, etc. of Specific Crimes

A

Defendant and Prosecutor

Lee Jong-chul (Court) (Court of Second Instance), Kim Young-il (Court of Justice)

Law Firm F

Attorney AM, G

Law Firm NN

Attorney AO, AP

Law Firm AL

Attorney Q Q, AR

Seoul Central District Court Decision 2016Gohap473 Decided October 27, 190

May 17, 2017

All appeals by the defendant and the prosecutor are dismissed.

1. Summary of grounds for appeal;

A. Defendant (Fact-finding, misunderstanding of legal principles, and unreasonable sentencing)

1) misunderstanding of facts and misapprehension of legal principles

A) The part of the referral and acceptance related to the military PX supply (the criminal facts of the judgment of the court below)

The Defendant received KRW 50 million from I around September 201, however, the amount of KRW 20 million is the amount that I would use for the purpose of the drilling, and the remaining KRW 30 million is the value of public diagnosis 15 gamblings and 10 gamblings.

B) Part of the facts charged by the Defense Acquisition Program Administration related to the supply of munitions (Paragraph 2 of the facts stated in the original judgment)

The defendant has not received KRW 50 million from L.

2) Unreasonable sentencing

The punishment of the lower court (one year and six months of imprisonment, and additional collection 100 million won) is too unreasonable.

(b) An inspection;

The sentence of the court below is too unhued so as to be unfair.

2. Judgment on the mistake of facts and misapprehension of legal principles by the defendant

A. Part of arranged goods related to military PX supply

1) The judgment of the court below

The lower court found the Defendant guilty of this part of the charges on the following grounds: (a) based on the evidence duly admitted and examined, when comprehensively taking into account the following circumstances: (b) I, the money and valuables provided to the Defendant under the pretext of arranging the delivery of a military unit to the Defendant at the court of the lower court; (c) introduced the person in charge of the military welfare group to the National Armed Forces; and (d) actually visited the person in charge of the military welfare group; (c) made a concrete statement in the process of meeting the supply; (d) the content consistent with the U’s statement at the prosecutor’s office; and (e) the U’s legal and prosecutor’s statement also conforms

2) Determination of the immediate deliberation

In light of the circumstances indicated by the lower court and the following circumstances acknowledged by the evidence duly adopted and investigated by the lower court, the lower court’s judgment is justifiable, and there is no error of misunderstanding of facts or misunderstanding of legal principles. Accordingly, the Defendant’s assertion is without merit.

① consistently, from the investigative agency to the court of the court below, I requested that KRW 50 million be required to request the head of the NA (hereinafter “H”) to supply cosmetics to the head of the NA (hereinafter “H”) around September 201, and delivered the Defendant a cash of KRW 50 million at around that time. After that time, the Defendant, who met the head of the NA’s military welfare group, took drinking together with the Defendant, was visiting the NA welfare group in charge of the supply of the said group. After doing so, the Defendant visited the head of the NA, who was in charge of the NA welfare group, and then received brying from the person in charge of the delivery. After that, the Defendant followed the head of the NA welfare group, she again provided the head of the NA welfare group with meals and the purpose of solicitation. The lower court’s judgment and the prosecutor’s statement also conform to I’s above statements.

(2) After the expiration of the period of the agreement on prohibition of competitive business of the same type of business as a result of the sale of cosmetics already operated by I, while developing markets for several pages of areas while engaging in management of H in full scale.

It seems that there was an interest in supplying cosmetics to the military PX. The defendant has been friendly with a specific military related person, and the fact that he received the head of the national defense welfare group from the related person was also introduced by him. Since it is recognized that there was an incentive to introduce the head of the national defense welfare group through the defendant and to newly deliver the cosmetics to PX, it is also possible to fully understand the circumstances that the defendant provided KRW 50 million as security expenses around the end of the year 201, as requested by the defendant.

③ Since the cosmetics company, which had previously been operated, owned a large quantity of cash assets by selling them, it seems that the Defendant could have relatively easily prepared KRW 50,000 in cash. In addition, the Defendant visited the Armed Forces Welfare Group along with the Defendant himself to meet the head of the Armed Forces Welfare Group and sought explanation on the delivery of the PX. In light of the 1’s statement that the Defendant arranged several occasions with the head of the Armed Forces Welfare Group following the issuance of money and valuables to the Defendant, the Defendant would have introduced I to the head of the Armed Forces Welfare Group after receiving money and valuables from I, and introduced I to the head of the Armed Forces Welfare Group and recommended the delivery of the PX.

④ Although I did not demand the Defendant to return KRW 50,000,000 to the end of the PX supply, I stated to the effect that even though the Defendant did not supply it, the Defendant did not demand the return of KRW 50,000,000 to the end, [Article 70 of the Evidence No. 1st, No. 70 of the Evidence No. 1) and the above explanation of I is sufficiently acceptable.

⑤ While recognizing that the Defendant received KRW 50 million from I, the Defendant argued otherwise on the pretext of receipt. As such, it is difficult to readily understand that the Defendant provided the Defendant with a large amount of money on the ground of a name saving, given that he/she would use it for a name saving, given that he/she would have received KRW 30 million from I. However, considering that the Defendant was Bricker and was not the other party to solicitation, it is difficult to readily understand that he/she provided a large amount of money to the Defendant on the ground of a name saving without any clear purpose. In addition, the Defendant asserted that the remainder of KRW 30 million was a public diagnosis and a light worth. However, according to the Defendant’s written statement at the court of first instance, this is nothing more than the purport that the Defendant calculated KRW 30 million out of the money received from I by I as a value of public examinations, etc., and that there was no specific reason for the Defendant’s assertion that he/she purchased or provided the amount of money to the Defendant on the ground that it did not have any specific reason.

(6) On the other hand, the Defendant, in the fifth investigation by the prosecution, testified that the confessions made in the prosecutor's investigation by denying this part of the facts charged at the time of the trial again at the time of the trial. However, in light of the fact that T-at-law who was investigated by the prosecution with the Defendant at the time of undergoing the investigation did not have any preferential or final advantage that could affect the voluntariness of statements at the time of undergoing the investigation at the time of receiving the investigation (as alleged by the Defendant, No. 2, No. 554 of the trial record) and stated in the court of the court below, the probability that the confessions made in the prosecutor's investigation at the prosecutor's office cannot be said to lack voluntar

B. The Defense Acquisition Program Administration's part concerning the supply of munitions

1) The judgment of the court below

In light of the following circumstances acknowledged by the evidence duly adopted and examined, namely, L, a money and valuables provider of this part of the facts charged, made a concrete statement in the process of delivering money and valuables to the Defendant under the pretext of mediation by persons related to the Defense Acquisition Program Administration in the court of the court below, and the contents of L, R, S, T, etc. are consistent with L’s statements in the prosecutor’s office, the court below’s legal and prosecutor’s statements and various financial transactions are consistent with L’s statements, and at the time L was engaged in corporate acquisition by receiving investment from several hundred million wons, the court below convicted the Defendant of this part of the facts charged, on the following grounds: (a) it is deemed that there is no particular difficulty in preparing money and valuables to be given to the Defendant; (b) it is difficult for the financial authorities to withdraw money and valuables in cash in a lump sum due to the bank branch’s circumstances; and (c) it can be possible for L to obtain the facts that L prepared cash to be given to the Defendant through R, V, or S.

2) Determination of the immediate deliberation

The judgment of the court below is just and there is no error in the misunderstanding of facts or misunderstanding of legal principles in light of the following circumstances acknowledged by the evidence duly adopted and investigated by the court below and the court below. Accordingly, the defendant's assertion is without merit.

① consistently, L from the investigative agency to the original trial, consistently promoted ways to maximize profits through the operation of the tea listing company by accepting the listing company and utilizing the “benching” technology that the Defendant intended to take over. During that process, inasmuch as the Defendant supplies products using virtual technology to the Defense Acquisition Program Administration or selects the development of the relevant products as a national research task, the value of the listing company would increase. Therefore, to this end, L sent a total of KRW 50 million to the Defendant on the ground that it is necessary for the Administrator of the Defense Acquisition Program Administration to dispatch the relevant products to the persons concerned. Moreover, L from the prosecutor’s office and the lower court court’s court’s order to withdraw KRW 30 million deposited in the account of his national bank around September 2013 and delivered L/V to L. Around March 2014, S made a statement that it made a separate cash transfer of KRW 20,000,000 to its new bank account and made a statement on the details of cash transfer.

② From the date of release on December 2012 to January 2015, L continued to take over several listed companies from the date of release on December 2012, 2015. At the same time L appears not to be impossible to prepare money and valuables in the name of solicitation requested by the Defendant, in light of the fact that L had prepared to take over listed companies by means of borrowing the cash of KRW 100 million or receiving investments from many persons.

L In light of L's prosecutor's statement (Evidence No. 153, No. 153, the evidence record) to the effect that LA could have been aware that LA would be able to take over the certificate of listing because it failed to accept the certificate of listing, but it attempted to take over many listed companies, and that LA would have been able to take over the certificate of listing, and in particular, the Defendant has emphasized that LA is a friendly relationship with himself/herself and has been friendly with Cheongdae-dae or several large companies presidents, it is acceptable to accept the circumstances where LA would take over the certificate of listing and deliver money and valuables to the Defendant for the purpose of pre-payment, etc. in preparation for the case that LA would have acquired the certificate of listing and possess the certificate of listing.

4. On the other hand, the defendant made a statement of confession in the fifth investigation of the prosecution regarding this part of the facts charged, but again denies it in the public trial and asserts that confession in the public prosecutor's investigation has no voluntariness. However, on the above grounds, the confession in the fifth investigation of the public prosecutor's office cannot be deemed to have no voluntariness or credibility.

3. Determination on the assertion of unreasonable sentencing by the defendant and prosecutor

It is advantageous to the defendant that the defendant does not have the same criminal record.

However, the crime of this case is a situation unfavorable to the defendant, where the defendant received money under the pretext of solicitation or good offices while emphasizing the friendship with the senior executives in the military. This is a serious damage to the public confidence in the fairness and integrity of the public official's performance of duties, and such a crime is very bad. The money and valuables received by the defendant are large of KRW 100 million in total, and the defendant does not reflect his fault up to the trial by asserting that other persons gather himself.

On the other hand, if there is no change in the conditions of sentencing compared to the first instance court, and the sentencing of the first instance court does not deviate from the reasonable scope of discretion, it is reasonable to respect it (see Supreme Court en banc Decision 2015Do3260, Jul. 23, 2015). Accordingly, the Defendant’s age, character, health, environment, motive and circumstance of the crime, means and consequence of the crime, circumstances after the crime, etc. are considered in full view of all the sentencing conditions specified in the records and arguments of the case, it is not recognized that the lower court’s punishment is too heavy or unreasonable. Accordingly, the Defendant and the prosecutor’s assertion of unfair sentencing is rejected.

4. Conclusion

Therefore, since the appeal by the defendant and the prosecutor is without merit, it is dismissed in accordance with Article 364 (4) of the Criminal Procedure Act. It is so decided as per Disposition.

The presiding judge shall be appointed and appointed concurrently.

Judges Kim Gin-han

Judge Park Sung-sung