2016Do11306 Violation of the Act on the Aggravated Punishment, etc. of Specific Crimes

A person shall be appointed.

Defendant

Law Firm B

Attorney C, D, E, F, G

Seoul High Court Decision 2016No242 Decided June 30, 2016

December 15, 2016

The appeal is dismissed.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. Regarding ground of appeal No. 1

The lower court, based on the records, asked the Defendant at the Seoul Central District Prosecutors' Office on December 14, 2014 and December 16, 2014, and submitted the output of e-mail from the Defendant in the form of seizure of voluntarily produced articles. The Defendant was subject to questioning by the prosecution as to whether the Defendant and H (hereinafter “H”) may submit a e-mail (hereinafter “e-mail”) between the Defendant and H (hereinafter “H”). The Defendant was allowed to enter and read the e-mail ID and password by accessing the Internet, and submitted the e-mail to the prosecution by printing out the e-mail contents after entering and reading the e-mail ID and password, and the Defendant submitted “to submit the e-mail according to the Defendant’s free will” in that process.

12. After recognizing the fact that the defendant signed the self-written confirmation of 16.16. Then, there is no evidence to prove that the examination of the defendant was conducted without notifying the right to refuse to make a statement prior to the voluntary submission of the e-mail output of this case. In light of the circumstances stated in its reasoning, the defendant was present at the prosecutor's office at the prosecutor's office's request and asked questions as to whether the defendant can submit the e-mail, which is a communication means between himself and H company based on the execution result of the immediately preceding seizure and search warrant, was conducted as part of the procedure for the seizure of voluntarily produced e-mail. Since the defendant received the prosecutor's request and submitted the e-mail output at his discretion after entering the e-mail ID and password and printing out the contents of the e-mail, this constitutes legitimate measure based on the defendant's voluntary consent, and it is difficult to deem that there was any illegality in the procedure for the seizure of the e-mail output of this case. In addition, the court below determined that the above written consent and confirmation was legitimate.

In light of the relevant legal principles and records, the above determination by the court below is just, and contrary to the allegations in the grounds of appeal, there were no errors by misapprehending the legal principles on the investigative agency's right to refuse to make statements, right to appoint counsel, and evidence illegally collected, or omitting judgment.

2. As to the grounds of appeal Nos. 2, 3, and 4, the lower court acknowledged facts and circumstances as indicated in its reasoning. In full view of the following, the lower court affirmed the first instance judgment convicting the Defendant of the charges of this case, on the ground that: (a) the Defendant entered into the first and second advisory agreements with H company to receive approximately KRW 6.5 billion from H company under the pretext of exercising influence on the decision-making parties, such as the Ministry of National Defense, the Navy, and the Defense Acquisition Program Administration, in order to select the model of J helicopter in relation to the I project; and (b) the Defendant received approximately KRW 1.4 billion among them, may be deemed as cases where the Defendant received and promised money and valuables in relation to the referral of matters belonging to public officials’ duties; and (c) the Defendant was aware and expressed about the receipt and promise of money and valuables in return for the referral.

Examining the relevant legal principles and the evidence duly adopted by the first instance court, the lower court’s aforementioned determination is justifiable, and contrary to what is alleged in the grounds of appeal, there were no errors by misapprehending the legal principles on the judgment on the acceptance of a crime, the interpretation of declaration of intent, and the intentional acceptance of referral.

3. Conclusion

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

Justices Kim Chang-suk

Justices Lee Sang-hoon

Justices Cho Jong-hee

Justices Park Sang-ok