(영문) 고등군사법원 2011. 3. 29. 선고 2010노247 판결

First, regarding the part of the facts charged in the instant case that received a bribe from Nonindicted 1 (hereinafter “the point of acceptance of bribe from Nonindicted 1”), the Defendant alleged that the receipt of money between the Defendant and Nonindicted 1 is an individual lending relationship, but considering the personal relationship between the Defendant and Nonindicted 1, the absence of an agreement regarding the lending and borrowing relationship, and the disagreement between the parties as to whether payment was made, the lower court erred by misapprehending the fact that it is not a private lending relationship, but a bribe, and by misapprehending the fact that it is not a bribe.

Second, regarding the receipt of a bribe from Nonindicted 4 among the facts charged in the instant case, the Defendant alleged that the monetary transaction between Nonindicted 4 was an individual monetary relationship, and is not related to his duties, but Nonindicted 4 reversed his statement as to whether to repay the money or whether to complete the collection of waste materials, etc., and thus, the lower court erred by misapprehending the legal doctrine that the said money is not a bribe, by misunderstanding the fact that the Defendant was a bribe.

(2) Unreasonable sentencing

The sentence of the court below is too unfortunate in light of the defendant's circumstances.

B. Summary of the grounds for appeal by the defendant

(1) misunderstanding of facts or misapprehension of legal principles

Of the facts charged in this case which the court below found guilty, the fact that the bribe was received from Nonindicted 2 and that it was received from Nonindicted 3 is erroneous in the misapprehension of legal principles as a bribe, even though it was received from a simple monetary lending relationship unrelated to the Defendant’s duties.

(2) Unreasonable sentencing

The sentence of the court below on the guilty portion recognized by the court below is too unfair due to the defendant's circumstances.

2. Determination

A. Ex officio determination

Before determining the grounds for appeal, the court below ex officio examined the defendant's reasons for appeal. Although the court below found the defendant guilty of the charge of bribery and the charge of bribery from Nonindicted 1 among the facts charged in this case as the facts charged in this case constituted a case where there was no evidence of crime in the reasoning of the judgment, each of the above parts of the judgment was not pronounced not guilty, and the judgment below was erroneous in violation of Article 380 of the Military Court Act, and the judgment below should be reversed in accordance with Article 428, Article 431 and Article 414 subparagraph 1 of the same Act.

However, each argument of misunderstanding of facts or misunderstanding of legal principles between the defendant and the military prosecutor is still subject to the judgment of the court.

B. The point of acceptance of bribe from Nonindicted 1

(1) Summary of the facts charged

The summary of the facts charged of this case is that the Defendant was a soldier working for the Corporation at the first document management unit of the Water Defense Headquarters from June 1, 1995 to June 8, 2010. Nonindicted Party 1 was the representative of Nonindicted Co. 5 corporation mainly supplying equipment services, such as heating, cooling, and boiler, to the Gun. The Defendant received a request from Nonindicted 1 for offering general business convenience in relation to the construction of the water defense headquarters documents and the installation of the facility under the name of the Defendant, and received KRW 70,000,000 from July 5, 2005 to the ○○○ Bank account (Account No. 1 omitted) account in the name of the Defendant, and received KRW 18,100,000 more than ten times in total from July 5, 2005 to August 18, 2009 and received the bribe from the Defendant to the bank account in the name of the Defendant, thereby giving and receiving the bribe in relation to his duties.

List of Offenses

본문내 포함된 표 송금자 입급일자 입금금액 송금자 계좌 피의자 계좌 비 고 공소외 1 (공소외 5 주식회사 대표) 05. 7. 5. 700,000 계좌번호 2 생략(□□□) 계좌번호 1 생략(○○○) 공소외 6 (주 1) 명의의 계좌 06. 7. 18. 3,000,000 계좌번호 6 생략(△△△) 06. 10. 18. 1,400,000 07. 7. 18. 2,000,000 계좌번호 3 생략(△△△) 계좌번호 6 생략(△△△) 공소외 5 주식회사 명의의 계좌 07. 9. 21. 1,000,000 계좌번호 5 생략(□□□) 계좌번호 6 생략(△△△) 경리직원 공소외7 명의의 계좌 08. 5. 13. 2,000,000 계좌번호 4 생략(△△△) 계좌번호 1 생략(○○○) 공소외 1 명의의 계좌 08. 9. 30. 2,000,000 계좌번호 5 생략(□□□) 경리직원 공소외 7 명의의 계좌 08. 12. 10. 1,500,000 ？？？ 09. 7. 3. 1,500,000 계좌번호 7 생략(△△△) 09. 8. 18. 3,000,000 합 계 18,100,000 ？？？

1) Nonindicted 6

(2) The judgment of the court below

In regard to this, the court below may see that there are circumstances to suspect that the defendant received 18.1 million won from Nonindicted 1 as a public official in charge of the Corporation, but it can be acknowledged that the defendant extended 14 million won to several times at the time when it is difficult to conduct the project, and the defendant prepared documents related to the Corporation and sent approval to the public prosecutor's office and the management office, and there are no additional documents attached to the estimate of Nonindicted 1 in the process of signing the documents related to the Corporation, and there were many cases where Nonindicted 8's legal statement was recommended by the public prosecutor's office, with a quotation attached to the estimate attached by the public prosecutor's office, it is hard to see that the defendant was given and received the above money in return for providing the general services of the Corporation operated by Nonindicted 1 and the public prosecutor's office, and there is no doubt that the defendant's testimony from the public prosecutor's office was consistent with this part of the defendant's statement and there is no sufficient doubt that the defendant's testimony was consistent with this part of the prosecutor's office's office.

(3) Judgment of the court below

A) Judgment of the Supreme Court on the crime of bribery and probative value

The Supreme Court, together with the Supreme Court's decision recognized by the court below, judged the relationship between the duty relationship and the compensation for the bribery.

Whether a public official’s profit constitutes a bribe as an unjust profit in relation to his duties shall be determined by taking into account all the circumstances such as the contents of the public official’s duty, the relationship between the provider of the duty and the benefit, whether there exists a special relationship between the parties, the degree of interest, and the circumstances and timing of receiving the benefit. In light of the fact that the legal interest of the bribery is the fairness of performing his duties and the trust of the society, the issue of whether a public official’s receiving the benefit is suspected of being fair in performing his duties from the general public should also be determined (see Supreme Court Decision 97Do3113, Mar. 10, 1998).

The court below's finding the defendant not guilty of this part of the facts charged on the ground that the meaning of the solicitation as stated in the facts charged is limited to a limited interpretation without examining the specific facts, such as the name and circumstances of delivering a bribe, and the pending issues related to the solicitation do not comply with the timing of time, shall not be sufficient to conduct a deliberation or commit an unlawful act of misunderstanding facts in violation of the rules of evidence and misunderstanding the legal principles on the crime of acceptance of bribe (see Supreme Court Decision 9Do1046, May 15, 2001)

In the case of accepting a bribe, if the receiver claims that the money received from the receiver is not a bribe but a loan, whether or not the consignee has received the money shall be determined by taking full account of all objective circumstances revealed by evidence, such as the motive, reason for delivery, and method of receiving the money, the relationship between the consignee and the lender, the position and occupation of the consignee, the necessity of borrowing the money, the possibility of borrowing the money, the possibility of borrowing the money from the person other than the borrower, the amount and circumstances of the loan, the economic situation of the accepter, the amount of the loan, the amount of the loan and the circumstances of the accepter, the amount of the loan, the amount of the loan expected economic interest related to the guarantee, the payment period and interest agreement, the station of the contract, the existence of the principal and interest of the accepter, and the possibility of compulsory execution (see Supreme Court Decision 2007Do3943, Sept. 7, 207

In addition, the probative value of evidence is left to a judge's free judgment (Article 308 of the Criminal Procedure Act), but such judgment must be consistent with logical and empirical rules, and the degree of the formation of conviction to find a defendant guilty in a criminal trial is not likely to be a reasonable doubt (Article 307 (2) of the Criminal Procedure Act). However, it is not required to exclude all possible doubts, and rejection of evidence which is recognized as probative value by causing a suspicion without any reasonable ground is not allowed beyond the bounds of the principle of free evaluation of evidence. The term "reasonable doubt" in this context refers not to all questions and correspondences, but to the reasonable doubt as to the probability of facts that are inconsistent with the facts that are not compatible with the facts that are found in accordance with logical and empirical rules. As such, it is necessary to establish the basis for this sexual prosecution that is understood in relation to the fact finding in favor of the defendant, it cannot be said that there is a reasonable doubt based on conceptual or abstract possibility (see, e.g., Supreme Court Decision 2004Do21425, Jun. 25, 2004).

B) Recognizing facts and judgments

According to the evidence duly adopted and examined by the court below and the court below, in addition to the facts acknowledged by the court below, ① deposited a total of 1.4 million won from around November 5, 2002 to January 23, 2003 into the non-indicted 1's account, and ② although the defendant lent money to the non-indicted 1 during the above period, the ○○ Bank's account held by the defendant was operated at least 2 million won to up to one million won (at least 4 million won, the balance was less than 4 million won but most of the balance was 7.4 million won, and the △△△△ Bank's account was operated at least 1.5 million won as a loan from the non-indicted 50,000 won to a maximum of 4 million won (at least 1.5 million won, the balance was less than 1.7 million won, but most of the balance was maintained on July 27, 2005).

In full view of the facts acknowledged as above, although the defendant was merely a one-year loan agreement between the non-indicted 1 and the non-indicted 1, the defendant was merely an economically difficult circumstance to operate the passbook at ○○ Bank (the fact that the land in the name of his parents was expropriated in the process of the party examination and the compensation was paid to the non-indicted 25 million won, which was 10 million won or less, and the defendant had no money than 100 million won. The defendant had no economic motive or interest on the loan transaction between the non-indicted 2 and the non-indicted 1 and the non-indicted 202 loan transaction, it was hard to view that the defendant had no economic motive or interest on the loan transaction between the non-indicted 1 and the non-indicted 1 and the non-indicted 2's loan transaction for about 20 years since 20 years since 20 years since 30 years since 20 years since 200.

In addition, according to Non-Indicted 8’s statement, the lower court determined that there was no relevance to duties on the ground that the Non-Indicted 2’s submission of a written estimate to the above non-Indicted 8 was the subject of the right to receive money from the non-Indicted 1, and that there was no substantial influence on the selection of the company. However, according to the statement of Non-Indicted 8, Non-Indicted 8, the lower court found that Non-Indicted 8 received KRW 200,000 from Non-Indicted 1 to 209 a total of 30,000 cash bags from Non-Indicted 1, and it was hard to view that there was no doubt that there was no possibility that there was no specific need for the Defendant to give or receive money from the non-Indicted 2, including the fact that there was no specific fact that there was no need for the Defendant to give or receive money from the non-Indicted 1, which is a separate statement from the court below to the effect that there was no specific fact that there was no need for the Defendant to give or receive money from the Corporation.

Ultimately, considering the defendant's duty, the fact of receiving and receiving money between the defendant and the non-indicted 1, and all other circumstances, the court below rejected the credibility of the evidence and the overall circumstances of the crime of bribery by causing a false doubt as to the defendant's duty, despite the fact that the above evidence and the overall circumstances were a bribe related to the defendant's duty. Thus, the prosecutor's assertion pointing this out has merit.

C. The point of acceptance of bribe from Nonindicted 4

The prosecutor asserts that Nonindicted 4, the person offering the bribe, reversed his statement about whether to repay the bribe or the progress in collecting waste materials, etc., and thus, the court below erred by misapprehending the legal principles regarding the payment of the instant money by misunderstanding the fact, although the amount received by the defendant was a bribe.

However, according to the evidence and records duly adopted and examined by the court below and the court below, ① the defendant and the non-indicted 4 were related to the high-speed line for ten years ago, ② the profits from the closed collection business in 2007 are KRW 1,349,400, and the amount paid to the defendant by the non-indicted 4 is up to two times the amount paid as a bribe compared to the profits. ③ The non-indicted 4 stated that the non-indicted 10 was called as the "non-indicted 10" who is the head of the Gun, not the defendant's closed collection business, but the non-indicted 11 was stationed in the court below's related meetings, but it was recognized that the defendant had been processed in the middle of the military force operation facilities under his command and that the actual contact was consistent. In full view of this, it is recognized that the defendant and the non-indicted 4 denied the profits from the closed collection business in 2007, and there is no reason to believe that there is no error in the misapprehension of legal principles or there is no other evidence.

D. The charge of acceptance of bribe from Nonindicted 2 and Nonindicted 3 (the guilty part of the lower judgment)

Of the facts charged in this case which the court below found guilty, the defendant's acceptance of a bribe from non-indicted 2 and non-indicted 3's acceptance of a bribe from non-indicted 3 is erroneous in the misunderstanding of facts or in the misapprehension of legal principles.

However, according to the evidence and records duly adopted and examined by the court below and the court below, regarding the acceptance of bribe from non-indicted 2 first, in addition to the facts acknowledged by the court below, ① Except as stated on April 19, 2007 as borrowing KRW 5 million at the time of the prosecutorial investigation, the non-indicted 2 stated that he paid the remainder to the defendant under the name of personnel expenses, meal expenses, or leave expenses, and reversed the statement that he borrowed in the court of the court of the court below. ② The non-indicted 3 did not have received reimbursement for three years without separately stipulating the agreement on the above loan, interest payment, or maturity period, and the acceptance of bribe from non-indicted 3, which was made in the court of the court of the court below and the non-indicted 12 from 206, and provided an opportunity for the defendant to explain his products to the affiliated party, and ② the witness 3 did not have been able to receive the above statement or the agreement of the court below as to the loan or the agreement of the defendant for the loan of this case.

3. Conclusion

If so, the prosecutor's appeal has some reasons and there are reasons for ex officio reversal. Thus, without examining the prosecutor's and the defendant's unreasonable sentencing, the decision of the court below is entirely reversed pursuant to Articles 428 and 431 of the Military Court Act, and the military court's decision is deemed sufficient based on the records of this case. Thus, the court below's appeal is again decided after pleading pursuant to Article 435 of the same Act.

Criminal facts

From June 1, 1995 to June 8, 2010, the Defendant was a soldier working as a public official in charge of the Corporation in the first document management unit at the Water Defense Headquarters (hereinafter referred to as the “Water Defense Headquarters”). Nonindicted 1 involved is the representative of Nonindicted 5 Stock Company, the director of Nonindicted 13 Stock Company, the related Nonindicted 2, and the related Nonindicted 3 are the representatives of Nonindicted 14 Stock Company, who supply water purification equipment.

1. The acceptance of bribe from Nonindicted 1

On July 5, 2005, the Defendant received a bribe of KRW 16,100,000 from Nonindicted Party 1 in total nine times from July 5, 2005 to August 18, 2009, such as receiving KRW 70,000 under the name of the Defendant from ○○ Bank account (Account Number 1 omitted) in the name of the Defendant, in response to Nonindicted Party 1’s request to provide convenience in general business regarding the construction of facilities at the Water Defense Headquarters documents, and received a bribe of KRW 16,100,000 from Nonindicted Party 1 in relation to the public official’s duties.

2. The acceptance of bribe from Nonindicted 2

On April 19, 2007, the Defendant received KRW 10,000,000 from Nonindicted 2 to the △△ Bank account in the name of the Defendant (Account No. 8 omitted) in the name of the Defendant, in response to Nonindicted 2, a director of Nonindicted 13 Co. 2, a company that supplies electric facilities and equipment services, in response to the solicitation for offering convenience in the military works, and received KRW 10,000,000 from Nonindicted 2, who received KRW 10,000,000 from Nonindicted 2 in the name of the Defendant, as shown in the list of crimes in the attached Table, in relation to the duties of the public official.

3. The acceptance of bribe from Nonindicted 3

On August 17, 2007, the Defendant received 4,000,000 won from Nonindicted 3 to the △△△ Bank account (Account No. 6 omitted) in the name of the Defendant from Nonindicted 3, the representative of Nonindicted 14 Co. 3, the Defendant, who supplied the water purification device, in relation to the construction of the water purification facilities of the water disposal facilities of the water disposal equipment, in response to the request for offering general business convenience to Nonindicted Co. 14 Co. 3, the Defendant received 4,000,000 won in total from Nonindicted 3 in connection with the public official’s duties.

Summary of Evidence

For each fact in the ruling:

Facts No. 1 of the ruling

1. A statement to the effect that the defendant, who was the defendant in the original judgment and the court of the first instance, requested the non-indicted 1 to lend the money in his judgment and received the deposit, and there was no agreement such as the contract, interest, or

1. The statement to the effect that Nonindicted Party 1, a witness, transferred money as indicated in the judgment of the court below and the court of a party to the defendant, was requested by the defendant to submit a written estimate, and that he maintained a monetary relationship without any vegetable virtue

1. The statement that Non-Indicted 8’s witness accepted a total of 2.4 million won from Non-Indicted 1, 2008 to 2009 from Non-Indicted 8’s court court, and the defendant’s statement to the effect that the designation of a specific enterprise would be doubtful so that it would be good.

1. The statement made in compliance with the examination of data relating to the veterinary contract;

Comprehensively,

Facts No. 2 of the ruling

1. A statement to the effect that the defendant, who was the defendant in the court below and the court of the trial, requested the non-indicted 2 to lend the money as stated in the judgment and received the deposit, and there was no agreement such as the contract, interest,

1. The statement to the effect that the witness Nonindicted 2 remitted money as indicated in the judgment of the court below to the defendant, who received large and small assistance from the defendant in the process of construction, and that he anticipated and remitted to receive assistance in the next construction

1. Statement to the effect that among the third protocol of interrogation of the accused prepared by the military prosecutor, the defendant requested the non-indicted 2 to lend and received the money as indicated in the judgment, and that if the Electric Facility Corporation was established in a radioactive document, it is stated that the document will send a quotation to the non-indicted 2;

1. Of the protocol of witness statement made by the military prosecutor against Nonindicted 2, Nonindicted 15 is the wife of Nonindicted 2, and when the Defendant takes charge of the electrical construction of the facility in the early 2007, the Defendant supervised the entire construction, provided a large and small help during the construction process, and provided money in the mind that the construction was conducted in the future. On 209, the document and the statement to the effect that he submitted an estimate and received a successful tender by requesting the Defendant from the transfer corporation to make an estimate by telephone.

1. Each statement to the effect that the defendant received money in the judgment from Nonindicted 2 and his wife Nonindicted 15 on four occasions as stated in each protocol of search, seizure, and verification of the military prosecutor's preparation (the first and third papers).

1. The statement made in compliance with the examination of data relating to the veterinary contract;

1. Each description appropriate for the report on completion of completion of the delegated repair works (fourth) in the second quarter of 2/4, and each description in the third execution process of the materials of different remuneration in the first quarter of 1/4;

Comprehensively,

The facts set forth in the judgment No.3

1. A statement to the effect that the defendant, who was the defendant in the court below and the court, requested to lend the money to Nonindicted 3 and received the money, and there was no agreement such as the contract, interest, and due date at the time

1. A statement to the effect that Nonindicted 3 remitted money as indicated in the judgment of the court below to the defendant under the name of Nonindicted 16, one of his/her father, and that he/she remitted money to the defendant for help in the future.

1. On August 207, 2007, among the fourth protocol of interrogation of the defendant prepared by the military prosecutor, Non-Indicted 14 Co. 14 Co., Ltd. conducted document and water purifier reinforcement work. At the time, the product of the above company was acquired a patent and entered into a contract with the above company's product at the management office upon entering the approval proposal into the above company's product, and the statement that the defendant received the money from Non-Indicted 3 before

1. Each statement to the effect that the defendant received money in the judgment two times from Nonindicted 3 (Non-Indicted 16) among the protocol of search, seizure and verification of the military prosecutor's preparation (j)

1. The statement made in compliance with the examination of data relating to the veterinary contract;

Comprehensively

Each of them can be accepted.

All facts in the ruling are proven.

Application of Statutes

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

Article 129(1) of the Criminal Act (the fact of acceptance of bribe and each of them together), Article 2(2) of the Act on the Punishment, etc. of Specific Crimes (the fact of acceptance of bribe from Non-Indicted 1 and Non-Indicted 2 and the concurrent imposition of fines)

2. Aggravation for concurrent crimes;

Article 37 (former part of Article 37, Article 38 (1) 2, and Article 50 (Crimes of Concurrent Crimes with Punishment of Bribery from Non-Indicted 1, who is More serious in criminal administration)

3. Detention in a workhouse;

Articles 70 and 69(2) of the Criminal Act

4. Additional collection:

Article 134 of the Criminal Act

Parts of innocence

1. The acceptance of bribe from Nonindicted 1 on September 30, 2008 among the fact of acceptance of bribe from Nonindicted 1

The summary of the facts charged in this case is as stated in B-B(1) of the above judgment, but as to the part of the facts charged that the defendant received KRW 2,00,000,00 from Nonindicted 1 to the account in the name of Nonindicted 7, who is the accounting employee, as stated in B-B of the above judgment, as to the part that the defendant was deposited in the account in September 30, 2008 from Nonindicted 1, the above facts charged, there is no evidence to prove otherwise, and thus, the defendant should be acquitted pursuant to the latter part of Article 380 of the Military Court Act, but as long as it is found that he is guilty of the rest of the part of the acceptance of bribe from Nonindicted 1 in relation to the crime of Japan, the judgment of innocence shall not be rendered separately.

2. The acceptance of bribe from Nonindicted 4

Of the facts charged in the instant case, the summary of the acceptance of bribe from Nonindicted 4 is that the Defendant received a bribe of KRW 2,900,000 in total from Nonindicted 4 and received KRW 2,00,000 in cash from the △△ Bank account (Account No. 6 omitted) in the name of the Defendant on September 18, 2007 in return for a solicitation to offer general business convenience to Nonindicted Company 17, such as introducing a person in charge of affairs so that the Defendant may collect waste waste materials from Nonindicted 4, the representative of Nonindicted Company 17, who is the collecting Nonindicted Company, while working as the public official in charge of the public works in charge of the public works in the instant case.

As examined in the above 2-C, as long as the receipt of money between the defendant and non-indicted 1 constitutes private business relations, it constitutes a case where there is no proof of criminal facts under the latter part of Article 380 of the Military Court Act, and thus, is acquitted.

Grounds for sentencing

In full view of the evidence and all records duly adopted and examined by the court below and the trial court, the circumstances favorable to the defendant are recognized, such as the fact that the defendant was the first offender without previous conviction, although the defendant denies the intention of the bribery of this case, it reflects the improper act of borrowing from the person related to the business, and the motive was made in the situation where the person concerned with the business was insufficiently, it was done in good faith for about 26 years prior to the case, the defendant's wife was a member of the bombs belonging to the defendant's wife, the defendant's wife was hospitalized for a long time due to old old old old old old old old old old union exchange and union report, and the disease has deteriorated, and the defendant also has no chronic forecast signboard escape certificate.

However, even though the Defendant was a public official in charge of the large-scale construction, there is an unfavorable circumstance against the Defendant, such as the fact that the Defendant first demanded a bribe to the company, that the total period of crime was over three years, that the amount of bribery was large to KRW 30,100,000, and that some of the facts charged in the acquittal portion of the lower court was found guilty.

In full view of the above circumstances, the sentencing of the Defendant is determined as ordered by taking into account the following circumstances: (a) the Defendant, a public official in charge of works, who is in a position to direct and supervise a large amount of bribe in relation to the attached documents and construction works, should seriously punish the Defendant on the grounds of fairness in the performance of public official’s duties and the trust of the people; (b) however, the Defendant’s motive, military career, in particular, needs to return to his home and society as soon as possible to support his wife and consciousness without economic ability

It is so decided as per Disposition for the above reasons.

[Attachment]

Supreme Court Order Do-Jung-Jung-Jung-Jung-Jung-Jung, Do-Jung-Jung-Jak

1) Non-Indicted 1’s partner

심급 사건

-보통군사법원 2010.10.29.선고 2010고9

고등군사법원 2011.3.29.선고 2010노247

-대법원 2011.6.10.선고 2011도4260

원심판결

-국방부 보통군사법원 2010. 10. 29. 선고 2010고9 판결

본문참조판례

-대법원 1998. 3. 10. 선고 97도3113 판결