[1] Requirements and methods for recognition of "public offering" in joint principal offenders / Standard for determining whether a crime constitutes joint execution by public offering

[2] Purport of necessary confiscation or collection stipulated in Article 116 of the Attorney-at-Law Act / Where several persons jointly distribute money and valuables received under the pretext of solicitation in connection with cases or affairs dealt with by a public official, the scope of confiscation or collection / Where an attorney-at-law has paid part of money received under the pretext of solicitation to a judge or investigation agency in a criminal case, etc. from another attorney-at-law under the pretext of co-defense, but has used it as such in his/her own decision, whether the amount equivalent to the expenses may be excluded from collection (negative)

[1] Article 30 of the Criminal Code / [2] Article 30 of the Criminal Code, Article 34, Article 109 subparagraph 1, Article 110, Article 111, Article 114, and Article 116 of the Attorney-at-Law Act

[1] Supreme Court Decision 2006Do1623 Decided December 22, 2006 (Gong2007Sang, 255), Supreme Court Decision 2010Do2905 Decided April 26, 2012 / [2] Supreme Court Decision 2005Do3255 Decided November 23, 2006 (Gong2007Sang, 82), Supreme Court Decision 2009Do14215 Decided February 11, 2010, Supreme Court Decision 2012Do2719 Decided May 24, 2012

Defendant

Defendant and Prosecutor

Law Firm Jung-ro et al.

Seoul High Court Decision 2017No188 decided September 7, 2017

All appeals are dismissed.

The grounds of appeal are examined.

1. As to the Defendant’s ground of appeal

A. The misapprehension of legal principles as to the violation of the Attorney-at-Law Act due to the conspiracy with Non-Indicted 1, the violation of the rules of evidence, and the incomplete hearing

1) A public invitation of two or more accomplices who jointly commit a crime does not require any legal punishment. It is sufficient that there is an implicit communication on the joint execution of the crime between the accomplices who intend to jointly commit a crime directly or indirectly, and even if there is no direct evidence, it may be recognized by the circumstantial facts and empirical rules. The joint execution of a crime by a public invitation is possible not on the premise that all accomplices realize the elements of the crime by themselves, but on the premise that they cooperates with the accomplices who realize the crime to strengthen the decision on the act. Whether it constitutes a public invitation shall be determined by comprehensively taking into account the degree of understanding the result of the act, the size of participation, and the intent to control the crime (see, e.g., Supreme Court Decisions 2006Do1623, Dec. 22, 2006; 2010Do2905, Apr. 26, 2012).

2) In full view of the facts and circumstances as stated in its reasoning, the lower court determined that: (a) around June 26, 2015, the Defendant conspired with Nonindicted Party 1 in collusion with Nonindicted Party 1; (b) KRW 2 billion in cash under the pretext of teaching and solicitation related to the suspension of execution in the first instance court of “○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○ on the basis of cash title 1 billion in advance

3) Examining the reasoning of the lower judgment in light of the aforementioned legal doctrine and the evidence duly admitted, the lower court’s aforementioned determination is justifiable. In so doing, it did not err by misapprehending the legal doctrine on the charge of violating the Attorney-at-Law Act, the establishment of joint principal offenders, and the degree of proof of criminal facts in the criminal trial, by failing to exhaust all necessary deliberations as alleged in the grounds of appeal.

B. The defendant's sole crime of violation of the Attorney-at-Law Act, violation of the rules of evidence, and incomplete hearing

Examining the reasoning of the lower judgment in light of the evidence duly admitted, it is justifiable for the lower court to have recognized that the Defendant received KRW 140 million in total on three occasions under the pretext of solicitation from Nonindicted 4’s public officials of the trial and investigative agencies regarding the affairs handled by the public officials of the criminal investigation agency, on the grounds as stated in its reasoning. In so doing, contrary to what is alleged in the grounds of appeal, the lower court did not err by misapprehending the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by misapprehending

C. misunderstanding of legal principles as to collection and violation of the rules of evidence

1) Necessary confiscation or additional collection under Article 116 of the Attorney-at-Law Act is a violation of Article 34 of the same Act, or a crime under Article 109 subparagraph 1, Article 110, Article 111, or Article 114 of the same Act, or deprivation of money and valuables or other benefits received by a third party or a third party who knows such circumstance so that he/she could not retain unlawful profits. Therefore, in cases where money and valuables have been distributed under the pretext of solicitation for cases or affairs handled by a public official, each person shall individually confiscate or collect the amount of money and valuables distributed to him/her. However, where multiple persons publicly and jointly commit a crime under Article 111 of the Attorney-at-law Act and receive money and valuables from an accomplice, it is inevitable to collect money and valuables equally among the co-offenders (see Supreme Court Decision 200Do1271, May 24, 201; Supreme Court Decision 200Do10651, supra.).

2) Based on its reasoning, the lower court determined as follows: (a) the Defendant conspired with Nonindicted 1 in collusion with Nonindicted 2, who received KRW 5 billion from the presiding judge, investigative agencies, etc. in charge of Nonindicted 2’s criminal cases, and solicitation therefor; (b) the Defendant and Nonindicted 1, who received the above KRW 5 billion, have no choice but to collect it equally in 2.5 billion since it could not be known that the Defendant and Nonindicted 1 received the above KRW 5 billion, respectively; and (c) even if the Defendant and Nonindicted 1 used part of the above KRW 5 billion for other attorney-at-law’s appointment expenses, it is merely a means of consuming property acquired in violation

3) Examining the reasoning of the lower judgment in light of the aforementioned legal doctrine and the evidence duly admitted, the lower court’s aforementioned determination is justifiable. In so determining, contrary to what is alleged in the grounds of appeal, there were no errors of misapprehending the legal doctrine regarding the fact-finding beyond the bounds of the principle

2. As to the Prosecutor’s ground of appeal

For the reasons indicated in its holding, the lower court determined that there was no proof of the crime, on the grounds that there was no proof of the crime regarding the charge of violation of the Attorney-at-Law Act in relation to the provision of money and valuables under the name of a public official of the trial and investigative agencies, and the charge of violation of the Attorney-at-Law Act in the name of solicitation other than Nos. 4, 7, 10 of the crime

Examining the reasoning of the judgment below in light of the records, the above determination by the court below is just and acceptable. Contrary to the allegations in the grounds of appeal, there were no errors in the misapprehension of legal principles as to the subject of a violation of Article 110 subparagraph 1 of the Attorney-at-Law Act.

On the other hand, the prosecutor appealed against the guilty portion of the judgment of the court below, but does not state the grounds for objection to this part in the petition of appeal and appellate brief.

3. Conclusion

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

Justices Kim Yong-deok (Presiding Justice)