Defendant

Captain (Ji Jin) Doctrine

Law Firm Israel, Attorneys Yoon Young-young

1. The defendant shall be punished by imprisonment for five years;

2. 62,00,000 won shall be additionally collected from the defendant.

From April 15, 2003 to December 21, 2005, the Defendant served as a captain of the Marine Corps’s volunteer team located in the Gyeonggi-do. The Defendant was in charge of the duties of supervising the construction site of repair works, designing and designing the contract, and making changes in the name and taking measures.

1. On September 3, 2003, the Defendant received KRW 40,000,000 from the representative of Nonindicted Co. 4 Co. 1 of the Marine Corps to transfer KRW 30,000,000 from the account (Account Number 1 omitted) in the name of Nonindicted Co. 11, who managed in the name of usual tea, in the name of Nonindicted Co. 11, under the pretext of asking for consideration of the design and change of the contract for the construction of △△△△ facilities to be implemented at the Marine Corps ○○○○○ Group of the Marine Corps, and received KRW 10,000,000, which is the difference by account transfer from the said Nonindicted Co. 1 around the 22th of the same month.

2. On October 8, 2004, the Defendant received 52,000,000 won from the above Nonindicted Party 1 to the account of Nonindicted Party 12 Bank (Account Number 2 omitted) in return for giving convenience in the design of the above construction project, modification of the contract, execution supervision, etc.

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

Facts in the Judgment

1. A statement to the effect that the Defendant received KRW 62 million from Nonindicted Party 1 as stated in this Court’s ruling, and that the duties of the public prosecutor’s book related to the construction was conducted, such as the field supervision and design of the new and repairing construction and the modification of the contract;

1. A statement in the statement of witness statement prepared by the military prosecutor against Nonindicted 6 that the defendant offered convenience to Nonindicted Co. 4 in the holiday work or design change, and that the financial standing of Nonindicted Co. 4 was good from 2001 to 2004.

1. Statement to the effect that he/she performed supervision over the holiday work in the protocol of statement of witness by the military prosecutor against Nonindicted 7 in the military prosecutor's preparation, and that he/she supported him/her with only one sergeant and prepared part of the design change document at the defendant's direction in order to increase work

1. Statement to the effect that, among the protocol of witness statement made by Nonindicted 8 in the military prosecutor’s preparation, several military corporations were awarded several orders, and Nonindicted 4 corporation was punished with financial standing, and that Nonindicted 1 had expressed his intent to accept a bribe by having the person who received a bribe from him not to help him because he had been able to do so.

1. Statement that the defendant received 62 million won as decided by Nonindicted 1 among the certified copy of the examination protocol prepared by the military judicial police officer (2009-53);

1. The statement to the effect that the defendant received the confirmation letter of facts from Nonindicted 13 attorney-at-law and sent it to Nonindicted 3 among the protocol of seizure prepared by the military judicial police officer (first time)

1. In the investigation report prepared by the prosecution investigator of the prosecution division of the Ministry of National Defense (the confirmation report on the details of loans made by the accused and Nonindicted 14), that is consistent with the current status of loans of the accused around 202;

1. Of the investigation report prepared by the Prosecutor General of the Daejeon District Prosecutors’ Office (related to Nonindicted 3’s sexual mail), Nonindicted 3 sent the mail that he received from the Defendant to Nonindicted 1, and Nonindicted 1 sent a bribe of 55 million won to the Defendant at the time of the payment of the balance of the Defendant’s office, there is evidence to acknowledge it.

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

Article 2(1)2 of the Act on the Aggravated Punishment, etc. of Specific Crimes and Article 129(1) of the Criminal Act

2. Discretionary mitigation;

Articles 53 and 55(1)3 of the Criminal Act (The following circumstances considered in favor of the reasons for sentencing)

3. Calculation of days of detention;

Article 57 of the Criminal Act

4. Additional collection:

Article 134 of the Criminal Act

The defendant and his defense counsel acknowledged the fact of monetary transactions with the representative of the non-indicted 1 corporation, and around September 3, 2002, it was a private loan relationship with the defendant and the non-indicted 4 corporation, and around September 3, 2002, the defendant recovered 40 million won and the balance remains to a few million won. On September 22, 2003, again lent 30 million won to the non-indicted 1 on September 22 of the same year, but on September 3, 2003, the above 30 million won and the remaining difference and interest after being repaid on September 5, 2004 and completed all the loan relationship (the first defendant borrowed 40 million won to the non-indicted 1, and then borrowed 30 million won to the non-indicted 1, 300 million won, and the defendant's statement was not a bribe of the non-indicted 50 million won and the defendant's statement was not a bribe of the above non-indicted 1 corporation.

In light of the above legal principles, the crime of acceptance of bribe is established when the number of money received from a public official’s duties and money is in a quid pro quo relationship, and there is no need to consider the existence of a solicitation and the quid pro quo relationship, and there is no need to specify the act of performance of duties (see Supreme Court Decision 97Do2609, Dec. 26, 1997). In addition, in a case where the defendant denies a criminal intent, it is not possible to prove by the method of proving indirect facts having considerable relevance to the criminal intent due to the nature of the object, and what constitutes indirect facts having considerable relevance, it is necessary to determine the relation of the fact reasonably based on the close observation or analysis power based on normal empirical rule (see Supreme Court Decision 2002Do5679, Feb. 11, 2003).

In addition, whether the amount received by a public official is an unfair profit with a quid pro quo relationship, shall be determined by taking into account all the circumstances such as the duty contents of the pertinent public official, the relationship between a job provider and a benefit provider, whether there exists a special private-friendly relationship between both parties, the degree of and timing for receiving the benefit, etc. (Supreme Court Decision 2000Do5438 delivered on September 18, 2001).

(11) According to the evidence of this court, the defendant's remaining 10,000 won of non-indicted 2's account transfer of 40,000 won of non-indicted 2's funds to non-indicted 40,000 won of non-indicted 10,000 won of non-indicted 10,000 won of non-indicted 10,000 won of non-indicted 20,000 won of non-indicted 10,000 won of non-indicted 40,000 won of non-indicted 10,000 won of non-indicted 20,000 won of non-indicted 10,000 won of non-indicted 40,000 won of non-indicted 10,000 won of non-indicted 10,000 won of non-indicted 2's account transfer of 80,000 won of non-indicted 2's funds to the defendant's office.

According to the above legal principles and facts duly admitted by this court, it is reasonable to view that a public official who was in charge of the business of supervision and design or alteration of the contract was given 62 million won to the non-indicted 1 and 400,000 won for 200,000 won for 100 won for 200,000 won for 40,000 won for 200,000 won for 300,000 won for 200,000 won for 30,000 won for 40,000 won for 20,000 won for 10,000 won for 20,000 won for 30,000 won for 20,000 won for 30,000 won for 10,000 won for 20,000 won for 30,000 won for 20,000 won for 30,000 won for 20.

In light of this, the defendant's money received from the non-indicted 1 cannot be deemed as the receipt of money through a private loan relationship, and it shall be deemed as a bribe as an unfair profit with a quid pro quo relationship. Thus, the above assertion by the defendant and the defense counsel is without merit.

The summary of the instant crime is that the Defendant received a bribe of KRW 62,00,000 from Nonindicted 1, a construction business operator, in relation to the job site supervision and design of the construction in charge of the Defendant’s duties, and the changes in the contract, while serving as the Marine Corps’s Master.

In full view of the fact that the defendant received a bribe in connection with his duties while serving in the military register of the soldiers belonging to the military, while denying it from the fact that it is evident that the defendant received it in connection with his duties, and the defendant did not find any assertion that it is difficult to obtain it even in the course of the defendant's examination, such as denying it from the evidence, and making it consistent with the defense that it is money borrowed, and claiming that it is difficult to obtain it even in the process of the defendant examination, the circumstances of acceptance of bribe are that the defendant actively demanded and received a bribe; the fairness in the performance of duties by the soldiers who actively contributed to the State; the fairness in the performance of duties by the soldiers who committed the act of the defendant; the fact that the amount of bribe received is 62,00,000 won or more, the crime of this case

However, according to the fact that the statutory punishment for the defendant's crime is high for a limited term of not less than 7 years, the minimum punishment was detained for not less than 6 months after the detention, and according to the defendant's summary records, the Minister of National Defense awarded three prizes over three times and received a large number of commendation, it was considered that the defendant faithfully performed military life prior to the instant case.

Accordingly, the full bench shall decide the sentencing of the defendant as ordered, considering the overall sentencing conditions of Article 51 of the Criminal Code, including the above matters.

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

Administrative patent judges, the Minister of Justice, the President of the Army, the President of the Korea Army (Presiding Judge) of the Military Tribunal for the use of the Order in the Army;