Do 2017 Do 20424 A. Violation of the Act on the Punishment, etc. of Specific Economic Crimes (Misappropriation)

B. Violation of the Act on the Punishment, etc. of Specific Crimes (A Bribery)

Certain crimes: Acceptance of a third party bribe)

(c) hindering the exercise of discretionary rights;

(d) Acceptance of a bribe;

E. Acceptance of a bribe after an illegal acceptance

(f) Acceptance of a third party bribe;

G. Violation of the Financial Prop Company Act

(h) Violation of the Act on Punishment, etc. of Specific Economic Crimes (recovering or receiving good offices);

A. Violation of the Political Funds Act

(j) Offering of a bribe;

1. (a)(b)(c)(d)(f)(h); and

A

(j) B

Defendant and Prosecutor (Objection to Defendant)

Law Firm C (for Defendant A)

Attorney D, E, and F in charge

G (for Defendant A) a legal entity G

Attorney H, I, J, K, L, M

Corporation (Limited LLC) N (for Defendant A)

Attorney in charge 0, P, Q, R, S, T

Attorney U, V, and W (for Defendant B)

Seoul High Court Decision 2017No 1650 decided November 17, 2017

May 11, 2018

all appeals shall be dismissed.

The grounds of appeal are determined.

1. The part against Defendant A

A. As to the grounds for Defendant A’s appeal, the lower court found Defendant A guilty of this part of the facts charged for the following reasons. In other words, the lower court found Defendant A guilty of this part of the prosecution for the following reasons: ① X-Y constitutes “public officials” under Article 123 of the Criminal Act: ② Defendant A, X-Y, was in charge of selecting a State-owned project operator; ② Defendant A, a local government-owned project operator, through re-evaluation procedures, etc. (hereinafter “AAA”).

A. A. B. The direction was made to select the Party as the Party-Friendly Project Operator. ③ This is an abuse of authority by commissioning an ex officio event for the purpose of enabling AB to be selected as the Party-Friendly Project Operator in the Party-Friendly Relations. ④ AA is selected as the Party-Friendly Project Operator.

12, 15. Criminal acts were completed and the prosecution of this case was instituted before the expiration of 7 years from that time, and the statute of limitations was not completed.

B) Examining the reasoning of the original judgment in light of the relevant legal principles and evidence duly adopted earlier, the lower court’s judgment did not err by misapprehending the legal doctrine on the elements for obstructing the exercise of ex officio rights, the limitation of prescription, etc., or by violating the legal doctrine on logic and experience, as otherwise alleged in the grounds of appeal.

2) The lower court found the Defendant guilty of this part of the prosecution for the following reasons. In other words, Defendant A, the president of AC, ordered AD Co., Ltd. (hereinafter “AD”), the representative director of AD Co., Ltd. (hereinafter “AD”), to make an additional investment in AA, violates the duties of AD to protect the property of AD, and Defendant A becomes a joint principal offender of the crime of breach of trust, along with AE, and the intent of breach of trust is recognized.

B) Examining the reasoning of the original judgment in light of the relevant legal principles and evidence duly adopted, the lower court’s judgment did not err by misapprehending the legal principles on the subject of breach of trust, joint principal offenders, or by violating the logical and empirical rules, as alleged in the grounds of appeal. 3) The lower court convicted the Defendant of this part of the preliminary public prosecution added at the lower court for the following reasons. In other words, the lower court found Defendant AE guilty of this part of the preliminary public prosecution for the following reasons. In short, Defendant A and AE constituted “illegal solicitation” as set forth in the crime of providing a third-party bribe. Defendant A and AE did not have an implied relation between AD’s additional investment and AE’s non-performance of legal measures.

B) Examining the reasoning of the original judgment in light of the relevant legal principles and evidence duly adopted, the lower court’s judgment did not err by misapprehending the legal doctrine on illegal solicitation of a third party bribe, failing to exhaust all necessary deliberations, or by violating the legal doctrine on logic and experience, as alleged in the grounds of appeal, thereby exceeding the bounds of free evaluation of evidence.

4) The lower court convicted each of the facts charged in relation to this part of the facts charged for the following reasons. In other words, it may be assessed that the National Assembly members received support payments from AF, AG, AH, AI, AJ-B through AK and AL in the same manner that Defendant A directly received support payments under the socially accepted norm. Defendant A is the subject that donated support payments to the National Assembly members, and Defendant A contributed political funds in the name of another National Assembly members, AF, AG, AH, AH, AI, and AJ, each of which exceeds the annual limit of support payments.

B) Examining the reasoning of the original judgment in light of the relevant legal principles and evidence duly adopted, the lower court’s judgment did not err by misapprehending the legal principles on bribe acceptance, the violation of the law of the Si/Eup/Myeon, the violation of the political fund law, or the violation of the legal principles on logic and experience, as stated in the grounds of appeal, or by exceeding the limit of free evaluation of evidence.

5) The lower court found this part of the prosecution guilty for the following reasons. In other words, the Defendant A’s statement to the purport that “I issued KRW 10 million to Defendant A” is credibility. The AL constitutes a person subject to the Defendant A’s duties, and considering the amount of the received money, the method of delivery of the money, etc., the amount of KRW 10 million was paid to Defendant A’s duty.

B) Examining the reasoning of the original judgment in light of the relevant legal principles and evidence duly adopted, the lower court did not err by misapprehending the legal principles on bribe acceptance and the violation of the Financial Company Act, or by violating logical and empirical rules, as alleged in the grounds of appeal, thereby exceeding the limit of free evaluation of evidence. 6) The lower court found Defendant A to be guilty of this part of the public prosecution for the following reasons. In other words, “A” paid KRW 30 million to Defendant A, and Defendant B was credibility in the statement of Defendant B, and thus, Defendant A received the said money from Defendant B in light of the comprehensive status of Defendant A and its performance of duties, the entire relationship between Defendant A and A and B, and the entire consideration for specific crimes.

B) Examining the reasoning of the original judgment in light of the relevant legal principles and evidence duly adopted, the lower court’s judgment did not err by misapprehending the legal doctrine on the constituent elements of the crime of bribery or by violating the legal doctrine on logic and experience, as otherwise alleged in the grounds of appeal, thereby exceeding the bounds of the due diligence.

7) After the retirement of the president of AC, the lower court found the Defendant guilty of this part of the facts charged on the ground that the KRW 10 million received from B after the Defendant retired from the president of AC, was recognized as a fact that he received under the pretext of good offices or solicitation for the duties of executive officers and employees of financial institutions.

Examining the reasoning of the original judgment in light of the aforementioned legal doctrine and evidence duly adopted, the lower court’s judgment did not err by misapprehending the legal doctrine on a crime of violation of the Act on the Punishment, etc. of Specific Economic Crimes (a violation of the Act on the Punishment, etc. of Specific Economic Crimes) or by misapprehending the legal doctrine on a crime of violation of the law of logic and experience, as alleged in the grounds of appeal.

8) The lower court found the Defendant guilty of this part of the facts charged for the following reasons. In other words, the Defendant A, the president of the AC, was aware of the possibility of loss due to the loan due to the receipt of a report on the difficult reason for the loan to AO, and ordered the loan without preparing measures for recovery of the loan even though it was not modified or improved after the decision on the non-payment of the loan. ③ Such act constitutes a violation of the duty, and the Defendant A’s intent and intent of illegal gain is recognized at the time of the loan. ④ The financial status of the AO at the time of the loan.

Considering the current status of business and the nature and value of security, there was a risk of damage to the entire loan, and the total amount of the loan is the amount of damage.

B) Examining the reasoning of the original judgment in light of the relevant legal principles and evidence duly adopted, the lower court did not err by misapprehending the legal principles on the punishment, etc. of Specific Economic Crimes (in relation to the crime of breach of trust, a person dealing with another person’s affairs, an act of breach of trust, an intentional intent, an intention of unlawful gain, calculation of property gains, an improper loan, etc., and failing to exhaust all necessary deliberations, or by violating the legal principles on logic and power, thereby exceeding the bounds of free evaluation of evidence.

B. 1) Violation of the Act on the Punishment, etc. of Specific Crimes Related to AA Investment (Bribery) as to the grounds of appeal by the prosecutor

The court below held that a bribe that AA received as consideration for illegal solicitation is not 4.4 billion won but 4.4 billion won, and that "an opportunity to receive investment in B" was "an opportunity to receive investment" under this part of the research service contract between AD and A, and it was not guilty of the facts of the primary public prosecution.

This part of the grounds of appeal is nothing more than the purport of disputing a factual basis for the above judgment of the court below, and the reasoning of the judgment of the court below was examined in light of the records, and there was no error in the misapprehension of the legal principles on bribery of the crime of receiving bribe, such as the allegation of the grounds of appeal, in the judgment of the court below. 2) The third party bribe acceptance portion related to AP Co., Ltd. (hereinafter "AP")

The court below found that the evidence submitted by the prosecutor alone does not merely provide AD's AE's opportunity to receive subcontract construction works to AP, but it cannot be viewed that there was a perception or understanding that the defendant A and AE provided profits to A Q at the price of solicitation. The court below found that this part of the public prosecution was not acquitted.

Examining the reasoning of the original judgment in light of the record, the lower court did not err by misapprehending the legal doctrine on illegal solicitation of a third-party bribe, such as the allegation of the grounds of appeal, or by exceeding the bounds of the due diligence due to the violation of the logical and empirical rules.

3) The lower court found the Defendant not guilty of this part of the public prosecution for the following reasons. In other words, the fact that Defendant A received USD 500,000 and KRW 30 million in cash from Defendant A while in AR and X. However, it is insufficient to recognize the fact that the said money and valuables were received in the name of solicitation or good offices related to AM, etc.’s loan. (ii) The fact that Defendant A used a golf course according to the status of a regular member after acquiring the status of a regular member of the golf club cannot be deemed as having received benefits separately, and it is difficult to view that the said money and valuables were received in the name of solicitation or good offices.

B) Examining the reasoning of the judgment of the court below in light of the record, the court below acquitted Defendant A of the part of the charges of acceptance and restriction of good offices as alleged in the grounds of appeal. In other words, the court below did not err by misapprehending the legal principles on the establishment of the charges of acceptance and restriction of property profits, or by violating logical and empirical rules, and thereby exceeding the limit of free evaluation of evidence. 4) On the grounds delineated below, the court below acquitted Defendant A of the part of the charges of violation of the Act on the Punishment of Specific Crimes (Bribery) and the Punishment of Specific Crimes (Bribery after misappropriation), among the facts charged, on the following grounds: (i) Defendant A cannot be deemed to have obtained a separate profit from using a golf course according to the status of a golf membership membership; and (ii) Defendant A cannot be deemed to have received a loan from Defendant A to the head of the AC bank; and (iii) Defendant A cannot be deemed to have received a loan from Defendant A to the head of the AC bank at KRW 20,500,000.

B) Examining the reasoning of the original judgment in light of the record, the lower court did not err by misapprehending the legal doctrine on relation to the duty of bribe, compensation relation, property interest, etc., as alleged in the grounds of appeal. 5) On the part of the lower court’s violation of the Act on the Punishment, etc. of Specific Economic Crimes after the retirement of the president of AC, the lower court rendered a judgment not guilty on the following grounds: (a) on this part, the part of the lower court rendered that the golf membership usage profit, overseas travel expenses, profit from the use of the corporation card, and attracting KRW 1 billion in capital of AS cannot be deemed as the title of brokerage for the duties of executive officers and employees of the financial institution.

Examining the reasoning of the original judgment in light of the record, the lower court did not err by misapprehending the legal doctrine on good offices or by violating the logical and empirical rules, as otherwise alleged in the grounds of appeal, or by exceeding the bounds of due diligence due to the violation of the logical and empirical rules.

2. The part as to Defendant B

A. On the grounds of appeal by Defendant B, the lower court found Defendant B guilty of the portion of the Defendant AC bribe amounting to KRW 30 million among the facts charged against Defendant B on the following grounds. That is, Defendant B’s statement purporting that Defendant B, who was in office as the president of AC, gave KRW 30 million over five occasions. The credibility is sufficient to ensure the authenticity of this confession, such as the details of the payment of delivery equipment, cash keeping details of the president’s room, and documents related to the loan. The above KRW 30 million has a comprehensive payment relation with the Defendant B’s duties, and Defendant B’s intent to offer bribe is also recognized in light of the legal principles as to the freedom of evidence and evidence adopted prior to the lower judgment, and the reasoning of the lower judgment did not err by misapprehending the legal principles as to the freedom of confession or by misapprehending the legal principles as seen earlier.

B. As to the grounds of appeal by the prosecutor

For the same reasons as the above 1.b. 4) of the judgment below, among the facts charged against Defendant B, the part of the bribe granted due to Defendant A’s use of the golf course during Defendant AC president’s term of office and the part of the bribe granted after Defendant A’s illegal disposal of the bribe was acquitted.

Examining the reasoning of the judgment of the original court in light of the records, a bribe as alleged in the grounds of appeal on the judgment of the original court.

There is no error of misunderstanding the legal principles concerning relation to duties, compensation relationship, property profit, etc. of the crime.

3. Conclusion

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

Justices Kim Chang-suk

Justices Kim Jae-hyung

Justices Min You-sook of the District Court