(영문) 서울고등법원 2018.1.19. 선고 2017노521 판결

1) In full view of M’s prosecutor’s statements and the court below’s legal statements, M had experienced a vague expectation as to his/her reappointment and uneasiness, and M had his/her reappointmenting expenses through GH, and GH was a simple temporary plant, and around January 26, 2009, he/she should be deemed to have caused fears as to his/her reappointment and requested the Defendant to serve consecutive terms.

2) M made a statement to the effect that “I explicitly asked the accused to stop protruding out of P” in the court of original instance, and the prosecution also made a statement to the effect that “I asked the accused to play a role of P because I could not obtain support from P due to the connection of human body.” R also made a statement to the prosecutor’s office and the court of original instance that “I would like to explicitly request P to be reappointed of M.” In light of the above M and R’s statement and the relationship between the accused and P, it can be recognized that the accused received a request for reappointment request or mediation from M.

3) Considering that, in return for the mere fact finding out only the atmosphere of the O bank (hereinafter “O bank”), M was paid the amount actually by promising M to 's sunken' to the Defendant, and the services provided by U.S. Co., Ltd. (hereinafter “U”) to L (hereinafter “L”) are worth KRW 2 billion. Therefore, it is difficult to view that the Defendant’s KRW 2 billion received from M is not a justifiable price under the public relations consulting contract, but a price for solicitation for reappointment of M.

4) In light of the legal principles of the Supreme Court precedents that the Defendant’s disclosure of piracy information constitutes a personnel solicitation even if he/she had ordered P to do so, and that the offense of acceptance of good offices is established even without specifying the other party to mediation to make solicitation, it shall be deemed that the offense of violation of the Attorney-at-Law Act is established even where the other party to whom the Defendant would solicitation would not be specified as P.

5) As the Defendant committed as if he could exercise influence over the reappointment of M while emphasizing the friendship with P, and M also promised to 's token' to the Defendant with the expectation that the Defendant would be reappointed, it can be recognized that there was an agreement between the Defendant and M as to solicitation and good offices at least implied will.

B. misunderstanding of facts and misunderstanding of legal principles about the violation of the Act on the AE AE-Related Specific Economic Crimes (Fraud)

1) AG’s statement is reliable since it is not located in a position to receive benefits according to the outcome of the instant case, and the statement from the investigation stage to the original court’s court. AJ’s statement based on which the lower court rejected the credibility of the AG’s statement is deemed to be reliable in light of the following: (a) AJ’s statement, which was based on the lower court’s rejection of the credibility of the AG’s statement, was prosecuted and tried as charges of receiving money and valuables from the Defendant, and the Defendant and the AJ are very close.

2) In light of the fact that U.S. and AE (hereinafter referred to as “AE”) concluded a public relations agency contract and made no act for the implementation of the contract, and the Defendant stated that he was trying to return part of the contract because he did not provide services equivalent to KRW 1.1 billion.1 billion, the public relations agency contract concluded between U and AE should be deemed as formal.

3) Although the Defendant received KRW 1.1 billion in advance as a public relations agency contract, the lower court determined only KRW 3.3 billion in total the contract price and omitted the judgment on KRW 1.1 billion.

2. Judgment on the violation of the Attorney-at-Law Act related to L

A. The judgment of the court below

In regard to this part of the facts charged that the defendant received KRW 2.134 million under the pretext of solicitation or good offices in connection with the affairs related to the appointment of L representative director who is a public official under the laws and regulations as the largest shareholder of L bank, the court below found the defendant not guilty of the facts charged on the ground that, in full view of the facts and circumstances as stated in its reasoning, the evidence submitted by the prosecutor alone was insufficient to recognize that the defendant requested for solicitation or good offices for the reappointment of L representative director, or accepted the request for solicitation or good offices for the reappointment of L representative director, or received money in return for such solicitation or good offices, and there is no other evidence to acknowledge otherwise.

B. Determination on the admissibility of each prosecutor’s protocol on V, V, R, and M in the lower judgment

1) Of the prosecutorial protocol on V and the prosecutorial protocol of the lower court’s protocol of the V and the prosecutorial protocol of the lower court, the part that “V received money exceeding KRW 2 billion from L in return for the Defendant’s reappointment of M” is admissible exceptionally only when the person who made the original statement is unable to make a statement due to death, illness, residence in a foreign country, or any other reason pursuant to the provisions of Article 316(2) of the Criminal Procedure Act, and the said statement was made under particularly reliable circumstances. However, there is no evidence to regard that the person who made the original statement was present at the court of the lower court and made a statement as a witness, and that W is unable to make a statement due to any reason as stipulated in the above provision. Accordingly, the part of the prosecutorial protocol of the lower court on V and the part of the prosecutorial statement of the lower court on the part of the prosecutorial protocol of the lower court which indicated the above hearsay statement as above and the parts of the hearsay statement of the V are inadmissible.

2) The prosecutorial protocol of R and M is a protocol in which the statement of a person other than the defendant was written by the prosecutor, so it is admissible only when it is proved by a statement, video-recording, or any other objective method at the preparatory hearing or a trial of the person making the original statement, that the protocol was prepared according to the due process and method pursuant to Article 312(4) of the Criminal Procedure Act, and that the protocol was the same as the statement made before the prosecutor or senior judicial police officer. The defendant or his defense counsel could have examined the contents of the protocol at the preparatory hearing or a trial of the original person, and it is proved that the statement recorded in the protocol was made in a particularly reliable state.

R/M testified in the court of the court below that each prosecutor’s statement about them is written as a whole while making testimony at the court of the court below, and that it is consistent even though the defense counsel specified a specific part of each of the above protocol and made such statement.

The statement made by R and M in the original court on some of its contents such as "the wrong expression", "the expression will go through", and "the purport is different" does not mean that the statement made by the prosecutor, but merely means that the statement made by the prosecutor was erroneous. However, there is no problem in recognizing the authenticity of each of the above written statements.

In addition, even if R has any content not written in the protocol among the contents written by the prosecutor, it is difficult to specify what content has not been written in the protocol, and it is difficult to view that all the contents written by the witness in the prosecutor's office should be written in the protocol. Therefore, it cannot be said that the authenticity of each prosecutor's statement made by the prosecutor's office is not recognized.

If so, each prosecutor's statement of R and M is admissible.

C. Specific determination

Comprehensively taking account of the following facts and circumstances acknowledged by the evidence duly adopted and examined by the court below and the court below, it may be recognized that the defendant received KRW 2.134 million from M under the pretext of soliciting prospective public officials for the reappointment of a L representative director of M. On the other hand, it is difficult to recognize that the defendant requested and accepted the request of P to request the reappointment of L representative director or received money and valuables in return for the request, beyond the extent that the defendant responded to M, or discovered the inside atmosphere of the O bank as to the reappointment of M’s representative director. The judgment of the court below which acquitted the defendant of this part of the facts charged is erroneous in the misunderstanding of facts or by misapprehending legal principles, which affected the conclusion of the judgment. The prosecutor’s assertion pointing this out is with merit.

1) Relevant legal principles

“Good offices” refers to an act of mediating or assisting a certain person and the other party in acting as a broker or convenience for a certain matter. As such, not only the transfer of the object of solicitation to the other party, but also the act of making a solicitation to the other party on behalf of the person (see, e.g., Supreme Court Decision 2007Do8117, Jan. 31, 2008).

On the other hand, even if there is an implied existence between a recipient of money or valuables or benefits with respect to matters pertaining to a public official’s duties (see, e.g., Supreme Court Decision 2013Do3940, Jul. 12, 2013).

In addition, whether there is a quid pro quo relationship between a broker and a beneficiary of a public official’s duties shall be determined by comprehensively taking into account all the circumstances, such as the contents of the relevant good offices, whether there is a friendship relationship between the broker and the beneficiary, the details and timing of receiving the benefits, etc. In addition, if there is a comprehensive and comprehensive quid pro quo relationship between the good offices and the recipient’s money and the money and valuables received by the broker, and if the nature of the consideration for the other acts is indivisible with respect to the good offices and the money and valuables received by the broker, it is reasonable to deem that the whole quid pro quo has the nature of the consideration for the good offices (see, e.g., Supreme Court Decision 2008Do10496, Feb. 26, 2009).

2) Circumstances of M around the reappointment of L representative director

① On March 26, 2008, the O Bank announced the L sales plan, and on August 22, 2008, publicly announced L sales on August 22, 2008. After the bidding procedure, N was selected as a priority negotiation subject, and written a memorandum of Understanding on November 14, 2008. N was selected as a priority negotiation commander, paid 315 billion won to the O Bank, and M was paid by N around November 2008 to the O Bank with the intention to succeed to L sales procedures well, including M, if sold to N, the representative director was expected to be able to be reappointed regardless of the intention of the O Bank.

However, the N bank assessed that it was insufficient for the N bank to submit its financing plan to N on January 13, 2009, and the N submitted its financing plan to N on January 15, 2009. On January 21, 2009, the O bank decided to deprive N of the eligibility for priority negotiation and declared the cancellation of N’s L sale MOU and the suspension of sale procedures.

Since the sale of L's N becomes uncertain, it is uncertain whether M's representative director is reappointed, and in particular, the intention of the O bank, the largest shareholder, and the intention of P, became an important factor that determines the reappointment of M. In this regard, M was expressed by the prosecutor's office that the P would sell L up to the last day, and as such, it was not possible that P publicly recruited the president's office or actively recommended a person who has not yet been appointed as the president for the smooth progress of the sale process in the future. From the author's perspective, P confirmed how the plan for L's personnel is being promoted, and stated that P was the most important factor that P would support the reappointment of a lower term without opposing the lower term (Evidence Nos. 4 1,884 of evidence record).

② M was friendly from the time GH, a wife of GI, and was friendly, and was in a political background that could have the most trusted of GH. However, on January 26, 2009, where the issue was whether GH’s reappointment of a representative director was raised, M was hospitalized in a hospital in the state of Aginary plant, and M was lost in a critical person that could help the reappointment of his/her representative director.

③ Around January 12, 2009, a number of documents, including “L status and prospects,” suspension of L sale procedures and future countermeasures, “the progress of L sale,” “review of appointment of executive officers,” and “LCE-related matters,” prepared by the O bank’s Enterprise Finance 4 office, contain contents of promoting appointment of new management as L’s management chain, and proposing negative evaluation opinions on M. On January 12, 2009, P had already failed to negotiate sales with N, and ordered the replacement of major executive officers including M (Evidence No. 12,658).

P replaced more than half of the president of the O Bank on January 29, 2009 with reprimanded personnel for failure to sell L sale, and around that time, the media reported that the article that deemed M's representative director's reappointment was negative in light of the above O bank's atmosphere.

In this situation, AT, GJ, W, GK, GK, GM from GL, which had been the vice president of L as the candidate for L representative director, and GO who was the president of GN.

P made a statement at the court of the court below that "no person think of M other than M as the representative director of L," but at the court of the court of the first instance, the court of the first instance instructed the replacement of the president at the Obank conference on January 12, 2009, and the legal statement at the court of the court below was made by mistake of memory. P also stated in the court of the first instance that the M will replace the president in an unofficial manner even before the meeting on January 12, 2009, and that the M will be replaced indirectly if the actual inspection was not conducted and the M would inevitably be replaced if the failure of sale was led to the failure of sale. In general, P made a statement that the story entered the relevant company or group when the important group or the subsidiary was made an important statement on the A.M. In addition, P made a statement that the M was incorporated into the relevant company or group.

④ As above, the time to view M’s representative director’s reappointment as negative after the sale of L was omitted, existed inside and outside of the O bank, and M was also concealed, but M did not have any special contact with P but it was a situation in which the passage to avoid one’s will was imminent by contact with P who had negative opinions on his reappointment due to the lack of any contact with P.

3) The Defendant and P-friendly relationship

① Around 1981, P worked at the Seoul Branch of the City Bank, and thereafter, P took office around June 2008 at the private financial sector, such as the Seoul Branch, the Seoul Office of GP Securities, the GR Securities, the Vice-Chairperson in charge of GS finance, etc. and took office as P around June 2008.

In around 2005, when the Defendant worked as the representative of the GP Seoul Branch, the Defendant came to know of P while being in charge of public relations activities at the GP Seoul Branch, and he saw as a kind of work with P several times thereafter. The Defendant seems to have deep friendly relationship with P by forming a group of “GU” from around 2009 with P, AJ, and GT on a regular basis.

② On May 29, 2008, immediately before P was appointed as Y, the Defendant attempted to prepare a Y-out memorial conference. Under the P’s instruction, the O Bank concluded a service contract equivalent to KRW 150,000,000 in total amount of the contract amount of KRW 150,000,000 with U.S., on seven occasions. Under this service contract, the Defendant, upon taking office as Y, conducted an interview with AA and the head of department from July 2008 to November 2009, after taking office as Y, provided an interview with the mother on the pending issues of each department, such as Z, and provided advice on the result, and conducted a public relations service for Z. In return, the Defendant received a total of KRW 150,152,500 from the O bank.

③ Although there is a public relations office of the O Bank Q Q in the prosecution, it seems unreasonable to publicize the launch of the holding company until entering into a service contract with an external company. However, on October 19, 2009, P instructed the board of directors at the P, and entered into a service contract for the successful promotion of public relations activities following the launch of U and holding companies on October 19, 2009 (Evidence 6:3,544 pages). In addition, at the prosecution, the FV in the SO Bank Secretariat stated that the Defendant was one of the persons who had been close to P at the closeest level of P at one month (Evidence 8:5,02 pages).

④ 피고인은 U을 고객들에게 소개하는 소개 자료에 U의 핵심역량으로 정부와의 관계를 강조하면서 "Reference"에 P의 이름, 직위와 개인 휴대폰 번호까지 기재하여 사용하였다. 또한, 위 소개 자료에는 U에 관하여 P이 "U is the partner that understands the domestic and the global market, in order to support FK in our development as aglobal corporate investment bank."라고 이야기한 것처럼 기재되어 있다(증거기록 11권 11,977쪽).

⑤ On March 16, 2010, the FY FY press reporters contacted the Defendant on March 16, 2010, and on March 17, 2010, the Defendant sent to the FZ reporters an e-mail stating that “I will write down the word in the FZ P and in an personal relationship with P, although I do not currently publicize the O bank, I stored the word in the E-M. I sent to the Defendant the e-mail stating that “I will write off the FZ in a thickness as I will receive an today’s margin (Evidence 9:5,682 pages).”

④ As seen earlier, the Defendant continued to maintain a friendly relationship with P in 2005 after he first known P, entered P’s personal mobile phone numbers in U introduction data, and used a friendly relationship with P for his own business by setting an interview promise individually. Since P assumed office as Y, the Defendant entered into a service contract of approximately KRW 150 million with the O bank and KRW 7 times in total.

4) Solicitation for reappointment of M L representative director;

① At the prosecutor’s office, R presented that “the Defendant would request the reappointment of M because it was well-known by himself.” The time was the same as the NN on November 208 immediately after the Defendant was selected as a priority negotiating party, and that this talk was made at the first floor T restaurant of the low-income company. The prosecutor’s office stated in the lower court that it was true at the time when the sale was in progress, and that it was not accurate memory as to whether the sale was made immediately after the arrival of the sale. R’s statement was consistent with the key part of “the Defendant’s proposal that the Defendant may assist the reappointment of M’s L representative director by taking advantage of his pro rata with P, and is consistent with the situation of M and L at the time, and thus, credibility of R’s statement is also consistent with the situation of M and M. It is sufficiently likely to affect the credibility of the entire statement as to the above story’s unclear statement is over seven years after the passage of about seven years.

② Re-appointing KRW 2 billion to the Defendant at the prosecutor’s office refers to the fact that the Defendant promised in advance during reappointment. Since the Defendant served as a O bank P when re-appointing L’s representative director, M was the only channel that can be controlled by P and P from the perspective of compensation (2: 980 pages of evidence record). The Defendant also made a statement to the effect that he/she made a statement to the effect that he/she did not explicitly indicate that he/she would be reappointed if he/she would be reappointed (2: 984 pages of evidence record), and that he/she would be reappointed (2: 995) and that he/she would have promised to be reappointed, and that he/she would have been presumed to have been able to have been reappointed, and that he/she would not be deep. In addition, he/she made a statement to the effect that he/she would not have made any specific statement to the prosecution after his/her request to the effect that he/she would not have any right to the value of the crime (2: 995).

However, M sent money to the Ma's women marriage. M voluntarily stated that M was unable to make a statement if M was unable to directly experience the circumstances leading to soliciting the appointment of L representative director, such as failure, although she tried to find out the O bank's atmosphere through the O bank AA, and M was sufficiently aware that his/her defense counsel and counsel could be subject to criminal punishment for breach of trust in the course of performing his/her duties in connection with the conclusion of the publicity consulting contract and the payment of the price. There was no contact with P who had negative thoughts about himself/herself, and there was no contact with GH, and M was a very unfavorable situation with M who tried to serve as the representative director at the time of his/her reappointment, and M was made to the effect that M was unable to make a statement to the effect that "the defendant's behavior" other than the above "the defendant's oral statement" can be seen as "the defendant's oral statement" in light of the fact that M was made by the court of the original judgment.

③ At the court of the court below, M did not frequently meet the Defendant before the instant case, but after L sales was nonexistent and M became an issue of reappointment, it was equal to only once a week to the Defendant. The Defendant requested the submission related to reappointment with the Defendant to the effect that it does not follow the instant public relations consulting contract. The Defendant’s questioning process of the relevant case (Seoul Central District Court 2017Kahap62), which was prosecuted by the Defendant, stated that the Defendant does not only have any relation to L’s public relations around that time.

In light of the above M’s statement, the fact that M and the Defendant had frequent inter-mas with the relocation around the time of this case is for reappointment of M, and it cannot be deemed that it is only related to L’s public relations activities.

④ At the court of the trial, P stated that “M from the Defendant is good.” At the time, M was under threat of dismissal from Y, and there was a possibility that it was the Defendant to deliver the message of the life-saving campaign, and that there was a possibility that it was the Defendant. The time when the Defendant stated that “M appears to be a matter of reappointment.”

⑤ Considering the above status of M at the time of M, M, and P’s statements, and the relationship between P and the Defendant’s friendship, it is reasonable to deem that there was an implied agreement between the Defendant and M as to the fact that the Defendant gave the Defendant a "sken" in return for the reappointment of M’s L representative director.

5) Nature of money and valuables received by the defendant from M

(1) The public relations agency contract concluded between L and U is arranged in the table as follows (Evidence Records 854-884 pages):

A person shall be appointed.

Before entering into a consulting contract with U on February 1, 2009 (hereinafter referred to as “instant public relations consulting contract”). Before entering into a public relations consultation contract with U on three occasions (hereinafter referred to as “the instant public relations consulting contract”). Among them, public relations and international R service contract was determined as “hour per service cost” on April 1, 2008. Under this contract, L was paid to U on April 13, 2008 and KRW 18,920,000 for service cost and KRW 27,804,889 for May 10, 2008 (the Defendant’s defense counsel stated that the total sum of the amounts on April 5, 2008 to April 1, 2008 constitutes “the service cost per hour” on April 1, 2008. However, the Defendant’s defense counsel’s assertion that the service cost and the amount on April 28, 2008, excluding the remainder of the service cost, is not accepted.

In addition, after concluding the publicity consulting contract of this case, L and U three times of public relations agency contract concluded with L and U are limited to KRW 10 million per month.

However, the instant contract is a large amount of time up to KRW 500,000,000 (excluding value-added tax) as a lump sum payment, and the monthly service amount is set at KRW 40,000,000, and the period is also for 36 months, the content of the other contract is clearly distinguishable from the other contract.

② Although the content of the service stipulated in the instant contract consists of a total of eight paragraphs (8) and (2), it is merely subdivided into three existing contents of the public relations agency contract concluded by L and U, and it is difficult to view that there is a big difference between the content of the other public relations agency contract and the content of the other public relations agency contract. As regards the service provided by U according to the public relations consultation contract in this case, L’s practice stated as follows.

In other words, AC, a public relations consulting division of L, made a statement to the effect that there was no significant difference between the services provided under the previous contract and the service provided under the publicity consulting contract of this case by U and U.S. as a result of the service provided by U and U.S., that there was no significant change in the current L public relations strategy, etc.

AB, the head of L’s publicity department, has no memory prior to consultation with L on the provision of services after the instant public relations contract at the court of the court below. U did not submit a proposal related to the contract to the public relations department or make a pulse test. U stated to the effect that “AB was unable to feel as being able to assist in the public relations department’s affairs by the contract with U.S.”

③ Although M was demanded to get a "sken" from the Defendant, it did not attempt to lower the amount of KRW 2 billion. The instant public relations consulting contract provides that KRW 500 million shall be paid in advance. There is no provision for advance payment, and the amount is the larger amount than 1/4 of the total contract amount. Furthermore, unlike other contracts entered into between L and U, the instant public relations consulting contract set the contract amount as KRW 40 million by the annual renewal of the contract period, rather than setting the contract amount by the annual renewal of the contract amount.

Article 12 of the Public Relations Consulting Contract of this case provides that "no contract shall be terminated unless there is any serious cause attributable to U.S., and any notification of cancellation or termination of the contract shall be made in writing six months prior to the conclusion of the contract." This is a clause which makes it impossible to terminate the contract, unlike other contracts entered into between L and U, and it is very unfavorable to L.

On February 27, 2009, the business management team (budget cooperation) column for L's internal goods on the publicity consulting contract of this case stated as "the matters not included in L's budget in '09" and "the actual expenses shall be clearly recorded in terms of use, so as to determine the efficient operation and sustainability of the service contract." As such, the publicity consulting contract of this case is a large amount of contract that is not reflected in L's budget in 2009, which is not a large amount of contract that is not reflected in L's budget in 2009, and was a contract which was concluded in a sudden manner with the Defendant after the Defendant's reappointment confirmation.

④ It is recognized that U provided services to a certain extent by providing L with English and Korean risk management manuals in accordance with the instant publicity consulting agreement, collecting domestic and overseas trends, submitting regular reports, etc. However, in light of the above: (a) the statement by practitioners in L Publicity Division, such as AC and AB, etc.; (b) unfair terms and conditions of the instant publicity consulting agreement; (c) the amount of contracts significantly larger than other contracts; and (d) materials provided by U to L were erroneous in some details; (b) considering that the Defendant provided intangible services, such as advice on the means of responding to media, the amount of the instant publicity consulting agreement is deemed to exceed a reasonable level.

⑤ The main motive for which M paid “2 billion won to the Defendant” in the court of the court below is that the Defendant stated that his reappointment was written in many ways, and that the price of the publicity consulting contract in this case was a very larger amount compared with other contracts between U and L as seen above. The publicity consulting contract in this case was concluded in the sense that M promises to give “salken which was promised in advance after the representative director was decided again after his reappointment after promising M was decided in the absence of conviction.” Since M was expressed in the M’s intention to replace M through a meeting on January 12, 2009 and was already delivered to the M, it is difficult to see that M simply because M did not need to pay a large amount of money to understand the atmosphere of the O bank. In light of the above, it is difficult to see that the Defendant simply concluded the public relations consulting service contract in this case by promising M to give "M to the Defendant" as consideration for understanding the atmosphere of the O bank.

(6) Comprehensively taking account of the above circumstances, U’s conclusion of the instant public relations consultation contract with L and the amount received therefrom shall be deemed as compensation for the Defendant’s offering of a solicitation relating to the reappointment of a representative director of M. Even if there are some nature of consideration for U’s offering of public relations services, the entire amount shall be deemed as compensation for an indivisible arrangement.

3. Judgment on the violation of the Act on the AE-Related Specific Economic Crimes (Fraud)

A. Ex officio determination

In the first instance trial, the prosecutor applied for changes in the indictment as stated in Section 3(b) below, and the subject of the trial was changed by this court's permission. Thus, this part of the judgment of the court below is no longer maintained.

However, despite such reasons for ex officio destruction, the prosecutor's assertion of misunderstanding of facts or misapprehension of legal principles is still subject to the judgment of this court.

B. Summary of the revised facts charged

AE, around June 2006, extended the amount of more than three trillion won from financial investors, such as put and white options to put and sell money, and accepted the shares of AF from around October 2008 due to the aggravation of the construction competition, etc., but it is likely that AF's share price is likely to cause serious liquidity crisis due to the financial investors' exercise of put and put and put in stock options, and accordingly, AE has become more likely to become more active in the financial structure throughout the group. Accordingly, in the situation where BE concludes an MOU on the sale of shares through financial rights with two financial companies and stocks, and negotiates with one another, it was highly probable that AE's efforts to improve the financial structure should be concluded on March 4, 2009 through the evaluation results of the financial structure of AE on March 4, 2009 to enter into a financial structure improvement agreement within the upper half of the term.

In early 2009, AE AI requested P to postpone or postpone the conclusion of the financial structure improvement agreement by explaining the current status of self-help efforts of AE as above, but P expressed its negative position, and AI also ordered AE's strategic management headquarters AG to check whether it can resolve the issue of the improvement of the financial structure improvement agreement through contact with AE to P.

At first of May, 2009, AG made contact to AJ according to the instructions of AJ and received the introduction of the defendant, and made contact to the defendant on May 2, 2009, by explaining the imminent situation of AE's financial crisis due to AF takeover and the situation of AE's financial crisis due to AF takeover in the process of selling AF stocks to solve this problem, and explaining the urgent situation of AF sale if IF stocks are concluded, I would like to avoid concluding a financial structure improvement agreement upon request of P, and it would be possible to postpone or postpone the financial structure.

Accordingly, the Defendant made a positive answer from AG to the effect that “IG would be deferred or postponed even after sunset.” On the other hand, the Defendant made a positive answer by proposing AG to make a solicitation on the affairs dealt with by P under the pretext of public relations as a result of requesting AG to conclude a contract. On May 11, 2009, the Defendant paid the immediately 1.1 billion won to AG, and then requested AG to enter into a contract to enter into an e-mail with “communication contract with the content of paying a sum of KRW 3.3 billion every four months each month in total.”

However, around April 2009, the O Bank notified AE of the designation of the subject matter of the agreement for the improvement of the financial structure in the upper half-year period. According to the Financial Supervisory Service's financial structure evaluation rules, the Financial authorities including the Financial Supervisory Service reported the results of the evaluation of the financial structure of AE, and thus, it was de facto established the plan for the improvement of the financial structure in the upper half-year period of 2009 with AE. Thus, around May of the same year, Y could not be deferred or postponed by withdrawing or destroying the plan for the improvement of the financial structure with AE which had already been confirmed as Y even as Y, and therefore, the Defendant did not have any intention or ability to postpone or delay the conclusion of the financial structure improvement agreement with AE and OB at the request of P, even if it did not have any other way to postpone or delay the conclusion of the financial structure improvement agreement.

Nevertheless, the Defendant, upon request from the P to the P for the completion of the contract for a significant amount of money, re-enters as if it could postpone or delay the conclusion of the agreement to improve the financial structure with the O bank desired to AE, and entered into a contract with AG and the Defendant for a total of KRW 3.3 billion as requested by the Defendant. On May 12, 2009, the Defendant received KRW 1.1 billion from the account under the name of the U.S. bank from the account under the name of GD to the account under the name of the U.S. bank.

Accordingly, the defendant deceiving AI and president AG, who is an executive officer or employee of the victim AE, thereby deceiving 1.1 billion won.

C. Determination on the changed facts charged

In full view of the following circumstances acknowledged by evidence duly adopted and examined by the lower court and the lower court, and the pro-friendly relationship between the Defendant and P in paragraph (2) of the above Article, the evidence submitted by the prosecutor alone is insufficient to recognize this part of the facts charged because it is difficult to readily conclude that the Defendant deceivings AI and AG because the Defendant did not intend to solicit P with regard to the extension or postponement of the conclusion of the financial structure improvement agreement with AE and O banks, and there is no other evidence to prove otherwise.

1) The nature of the public relations agency contract between U and AE

① From June 2006, AE acquired AF and received more than three trillion won from financial investors, and entered into a special contract for put options with respect to the said investment. However, from October 2008 to October 2008, AF’s stock price drops, there was a possibility that liquidity crisis may occur if financial investors exercise put options. Although AE attempted to resolve put options, there were various ways to put put options, but the situation was not abundled, it could cause difficulties in operating all affiliates due to liquidity shortage. The OE was selected as an object of a financial structure improvement agreement by holding a financial structure on April 28, 2009 to enter into a financial structure improvement agreement. At that time, AE was requested to postpone entering into a financial structure improvement agreement without consenting to the conclusion of the financial structure improvement agreement.

② At the court of the court below, AG stated that the Defendant “I am close to Pranc. Don, I am well aware that I am you would be able to resolve this problem. I am you would know P. P. am well, I am you want to do so. I am you want to do so. I am I am we am we am am we am we am am we am we am we am am we am we am we am we am am we am we am we am we am we am we am we am we am we am we am we am we am we am we am we am we am we am we am we am we am we am we am we am we am we am we am we am we am we am we am we am we am we am we am we am we am we am we am we am we am we am we now we now we am we now we now we now we am we now we now we now we now we now we now we am we now we now we now we now try to do...

On the other hand, AI dialogueed in the court of the trial whether it can solve the problem related to the AJ or the conclusion of the MOU. AJ recommended who is a person with a friendly relationship with P and ordered AG to directly contact AJ, and stated that AG directly asked AJ in relation to the AJ and SIR, and only IJ stated that it was not a true fact, and only was a date that could assist the O bank's problem.

The statements of the AG and AI are inconsistent with the objective situation in which the AE was faced at the time without contradiction, and the statements of the AG are inconsistent with the objective situation in which the AE was faced, and the statements of the AG are not consistent with the first instance court and the first instance court with respect to the circumstances in which the defendant was met, but the core part of the AG and AI, which requested the P to pay a fee against the defendant, is consistent, and it is difficult for AG and AI to find motive for false statements because the AG and AI have the burden of perjury and it is difficult for them to find a motive for false statements.

③ The head of the Public Relations Team at AE’s affiliate GaD publicity team did not have any content of consultation with U or the Defendant in connection with the public relations agency contract with U or the Defendant in the original trial. U did not receive a request from U for submission of publicity-related materials, etc., nor did it receive services or results under the contract. The Defendant also made a statement to the same purport. The Defendant also stated at the prosecutor’s office that “AE was a customer who was insufficient to provide services compared to the money received.” At the time of concluding the contract, the Defendant stated that “AE may return part of the services to AG later, but did not contact with the AG.”

④ The letter of opinion prepared around May 12, 2009 with respect to the public relations agency contract with U in the GD public relations team includes the opinion of the strategic planning team: additional reflection is expected to be made in the general management expenses. GX5/13; the remarks column state that "the additional budget approval is granted"; the contract signed by GD and U as a party to the above public relations agency contract does not exist; and the file is stored only in the defendant's USB with the "contract for Communication Consulting Services"; the 1.1 billion won capital capital stock rate paid to U in the list of the GD's accounts is the date of preparation of the tax invoice issued by U is also the date of May 11, 2009; it appears that GD paid KRW 1.1 billion to U in advance prior to the approval of the product, but it appears that the contract was not executed in the actual financial structure of the AD agency agreement with the 200-year public relations contract.

⑤ U’s accounting officer stated that “AS, except in the case of deposit by including advertising expenses in the course of requesting advertisement, shall be limited to one AE with the amount of KRW 1.1 billion deposited in a lump sum,” and U’s receipt of KRW 1.1 billion is very exceptional compared to U’s L (excluding the above contract concluded on February 27, 2009) and O bank’s service payment method for public relations agency contracts concluded with other companies, such as O bank.

6) After paying the Defendant the starting amount of KRW 1.1 billion, AG had given the Defendant a 1.1 billion, there was a talking that P was virtually failed to go through P, stating that “AE problem is not a problem that can be solved in the line.” On June 1, 2009, the financial structure improvement agreement was concluded between AE and O bank. Then, GD and U.S., who are the parties to the public relations agency contract, did not take any follow-up measures in accordance with the terms and conditions of the contract, and the said contract was naturally terminated.

7) In full view of the above circumstances, a public relations agency contract concluded between U and AE is not mainly aimed at publicity of AE, and it seems that the defendant was a contract for the purpose of giving compensation to the defendant, if the defendant solves the problem related to the conclusion of a contract for improving the financial structure at the risk of AE.

2) Whether to recognize the Defendant’s deception

① As seen earlier, the Defendant had a deep relationship with P, and around January 2009, the transfer of the instant case: (a) received a request for reappointment of L representative director; and (b) received a request from AE to resolve the conclusion of a financial structure improvement agreement; and (c) there was no circumstance to deem that the Defendant aggravated the relationship between P and the OE around May 2009. Rather, U continued to maintain the relationship between P and OE bank before and after the instant case and OE bank in March 10, 2009; (d) “the training training agreement on commission of OE bargaining” in September 23, 2009; (e) “the training agreement on consignment of communication capacity strengthening”; and (e) the contract on successful promotion of public relations activities following the launch of a holding company in October 19, 2009.

② It is difficult to deem that the Defendant was aware of the fact that the O bank actually established the plan for the improvement of the financial structure in the first half of 2009 with AE because it was the internal circumstance of the O bank.

In addition, it seems that AE's executive officers who are parties to a contract for the improvement of financial structure did not prevent MOU from entering into a MOU, but it is not easy to understand that the defendant, not an external economic and financial expert, is in a situation where it is impossible to postpone or delay the conclusion of a contract for the improvement of financial structure at that time.

As such, it is difficult to find that it is practically impossible to prevent the conclusion of the AE's financial structure improvement agreement, and it is also probable that this issue may also be made if a request is made to P, like appointment of L representative director.

③ At the lower court and the lower court, P stated that there was no fact that the Defendant made a solicitation regarding the conclusion of the agreement on the improvement of the financial structure of AE. However, in light of the following circumstances, P’s above statement is not reliable, and solely based on the above statement of P, it cannot be readily concluded that the Defendant did not intend or did not make a solicitation to P.

(1) The fact that the Defendant solicited P to the matters related to the duties of the O bank, such as the reappointment of the representative director of M and the postponement of the conclusion of the agreement on the improvement of the financial structure of E, is a very unfavorable circumstance for P as it can be linked to the integrity and fairness of the duties performed by P while in Y, and can be linked to the establishment of the crime of breach of trust against P. Accordingly, P has the motive to deny or passively make a statement.

In fact, P had negative opinions on the appointment of a representative director of M in the original court in relation to the solicitation for the reappointment of a representative director of M, but he had the idea of M as he himself. On January 2009, P made a statement to the effect that he had an intention to be reappointed at the time when he requested the Financial Services Commission to verify M as a single candidate. However, in the first instance of the first instance, P submitted evidence inconsistent with the above statement, such as the minutes of the O bank account with the instruction that P would replace L representative director, the above statement was reversed in the first instance court.

(2) As seen earlier, P and the Defendant formed a group of “GU” after the first call in around 2005 as a business relationship, and formed a golf meeting, and the Defendant was in a deep-friendly relationship between both sides of construction, such as the Defendant’s acting as an agency for publicity of the O bank. Such relationship between P and the Defendant appears to have an impact on P’s statement (i.e., that there was no fact that the Defendant made a solicitation with P in relation to AE). As a result, P’s statement that “the Defendant did not have made any solicitation with P” was unfavorable to P in the establishment of the Defendant’s fraud, or that the Defendant was not a formal contract for receiving compensation for soliciting P and that the public relations agency contract concluded with AE was not a contract for soliciting P, but a contract for actual public relations affairs of AE, so it is highly probable that P stated as above in accordance with the Defendant’s assertion.

(3) The contents of this part of the solicitation are "a postponement or postponement of the conclusion of a financial structure improvement agreement between the AE and the OE," and it cannot be deemed that such solicitation is difficult to say specially compared to the solicitation related to the personnel affairs of the LL representative director. In light of the relationship between the defendant and P at the time, it is reasonable to view that the defendant who was actually promised to receive large amounts of advance payment from AE, and that the defendant who was actually promised to receive additional amount in the event of success of the solicitation had discussed about the AE's financial structure improvement agreement from the beginning.

④ At the court of a trial, AG heard that “AJ found a person close to P, and even if I want to know about him, I would know about him well, it was about to talk about AG.” At the court of a trial, AJ made a statement that “A is a part that can be seen as close to P, even though P is in a social life, I would see that “A is in a group where P is in the middle of a group, but in either case, it may see that it is close to P when it is a high school motive,” the AJ made a statement that “A was expected to have a low- or Domen or Domen' conviction as her name due to the first explanation of AJ, only see the Defendant as the first time.”

⑤ As seen above, AG was in fact failed through P from the Defendant, and thereafter, on June 1, 2009, the agreement for the improvement of the financial structure was concluded between AE and OB, which was intended to be achieved through the Defendant, and the postponement or postponement of the agreement for the improvement of the financial structure was impossible to achieve its purpose. Nevertheless, AG did not demand the Defendant to return the already paid retainer KRW 1.1 billion (AG made a statement on the heart at the time that it was expected to be more than that at that time than that at that time, and was entirely remote, that it was a completely remote figure). The Defendant did not demand the Defendant to pay the remaining payment for the remainder of the financial structure. This can be deemed that the Defendant had made an actual solicitation for the improvement agreement for PE financial structure, but it was a “actual solicitation.”

(6) Comprehensively taking account of the foregoing circumstances, it is difficult to recognize that the Defendant, who did not intend to make a solicitation to P, was deceiving AG and AI as if he/she made a solicitation to P regarding the postponement of concluding an agreement to improve the financial structure of AE. Since AG was aware of a pro-friendly relationship between the Defendant and P through AJ, it appears that the Defendant’s use of the connection was expected to have been able to solve the pending issues of AE. However, it does not appear that the Defendant’s horse was believed to have been promoting the conclusion of an agreement to improve the

4. Conclusion

Therefore, the prosecutor's appeal on the violation of the Attorney-at-Law Act among the judgment of the court below is well-grounded, and there is a ground for ex officio reversal in the part on the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud), so the judgment of the court below is entirely reversed pursuant to Article 364 (2) and (6) of the Criminal Procedure Act and it is again decided as follows.

[Grounds for multi-use Judgment]

Criminal facts

At the time of the scheduled expiration of the term of office of Lman on March 2009, M of L representative director was expected to be sold to N on January 1, 2009, and there was no possibility of reappointment of his representative director on the N's side to determine the appointment of L representative director. In January 2009, N's sale was made without fault due to N's financial reasons, P made an effort to find a counter to soliciting the appointment of L representative director again on January 2009, but P did not find a counter for soliciting the reappointment of the former representative director from outside, but did not find a counter for the outside, there was no other negative opinion on the appointment of M's reappointment from O bank No. 4 office managing L to P, and it was inevitable for P to find a negative method of appointing a candidate's representative director by citing persons related to O bank, etc., and "the president has no authority to appoint a representative director, such as concealment of Q representative director revealed in the process of sale."

On the other hand, in the above circumstances, the defendant suggested to the officer R in charge of L's publicity as above that "it is possible to assist the president in the reappointment of MM because he knows P well," and asked M's president to deliver the statement, and R delivered the above proposal to M.

In such a situation, the Defendant was given a definite answer to M that “I will be able to make it possible for MI to be reappointed by requesting P to P. The Defendant would be able to make sure that MI will be reappointed.” Accordingly, the Defendant promised to make a solicitation for the reappointment of M to P who was authorized to appoint LI’s representative director by stating that MI will be "if the National Assembly is successful in reappointment, it will be called a "sken", and if you demand the price for the solicitation to be changed and would be a "rest" from M, it would be said that you will do so.

After that, when the reappointment of a representative director of M has become de facto final and conclusive by determining M as a sole candidate for L’s representative director in mid- February 2009, the Defendant, on February 2, 2009, stated “T located in Jongno-gu Seoul Metropolitan Government for consecutive reappointment” as “I will have to keep the soken as agreed because I would have succeeded again upon P. 2 billion won.” The Defendant requested M’s above solicitation and received M’s consent on the payment procedure for solicitation. Accordingly, the officer R in charge of publicity of L who received M’s instructions to renew the existing public relations consulting contract, and received KRW 50 million for advance payment as KRW 36 billion for the future employment of M’s president, and the rest amount was divided as KRW 206 billion for KRW 36 billion for the future employment of M’s 200 billion for the total term of 3.5 billion for the purpose of 200 billion U.S.’s re-operation, and then presented a detailed method of public relations among M. 29.

As a result, the Defendant received KRW 2.134 million under the name of solicitation or mediation for affairs related to the appointment of LA representative director who is a largest shareholder of LA and who is a public official under the laws and regulations.

Summary of Evidence

1. Part of the defendant's original judgment and the oral statement in court;

1. Each legal statement of each court below rendered by the witness R, M, AC, AB, AO, AP, Q, AR, and AS;

1. The witness P's partial statement in the original trial and the legal statement in the original trial;

1. Recording notes of each of the witnesses witnesses AT, GY, and R (Seoul Central District Court 2017Gohap62) of August 17, 2017;

1. Recording notes of Defendant’s newspaper against Defendant M on October 17, 2017 (Seoul Central District Court 2017Gohap62)

1. Partial statement of each prosecutor's protocol of examination of the defendant against the defendant;

1. Each prosecutor's statement of the R, AC, M, AB, AS, AY, AY, AW, AO, Q, AR, FV, AT, P, GJ, GY, and GZ;

1. Each investigation report (report on a summons and interview with the public relations department AD representative, confirmation of the status of the O bank and P, etc., attachment of the minutes, etc. of board of directors related to M reappointed, the current status of department in charge of L at the time of P, attachment of MOU with the O bank, the current status of L largest stockholders, the attachment of documents used at the time of mining (State), attachment of documents related to the ZU of the U-U, attachment of documents related to media ZU-related agency documents between the O bank and the U, attachment of documents related to media ZU-related agency, attachment of documents related to media ZU-related agency documents between the O bank and the U, and attachment of documents related to the ZU-related agency documents signed with the O bank, abstract attachment of business reports related to L's 208 fiscal year, and submission of documents related to L

1. 3,873,32 U.S. Deposit details 1, A 390,40, A290,497,560 transfer details, PR service contract, product indirect cost execution ( January 3, 2008), public relations and IR service contract, indirect cost execution ( April 1, 2008), termination agreement on the appointment of PR service ( April 1, 2008), communication consultation contract, indirect cost execution ( December 1, 2008), 20 U.S. 1, 200, 30 U.S. 1, 200, 30 U.S. 1, 200, 200, 10, 200, 30, 10, 200, 20, 10,000, 20,000,000,000,000,000,000,000

1. Each file output [L status and prospect-based 20090103, suspension of L Sale Procedures and countermeasures to be taken in the future (Y1j)]-209090107, (Blluri, 200907, Y209090107, Y209090112-2, Y2009090112-2, Y200909013, 2009090113, Y209090113, 200909-209-29];

Application of Statutes

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

Article 111(1) and (2) of the Attorney-at-Law Act; Article 4 of the Act on the Aggravated Punishment, etc. of Specific Crimes (Overallly, Selection of Imprisonment)

1. Additional collection:

Article 116 of the Attorney-at-Law Act

1. Order of provisional payment;

Article 334(1) of the Criminal Procedure Act

Reasons for sentencing

1. The scope of punishment by law: Imprisonment for not more than five years;

2. Application of the sentencing criteria;

[Determination of Punishment] Type 4 (at least KRW 100,00) of Acceptance of Money and Valuables under the pretext of Solicitation and Mediation of Crimes in Violation of the Attorney-at-Law Act

【Special Convicted Person】

[Scope of Recommendation] Basic Sphere (two to four years of imprisonment)

3. Determination of sentence;

The following circumstances and the defendant's age, character and conduct, intelligence and environment, family relationship, means and result of the crime, etc., which are conditions for sentencing, and the sentencing criteria of the Supreme Court Sentencing Committee.

○ Unfavorable Conditions:

(1) The Defendant received money and valuables under the pretext of giving or receiving a personnel solicitation by using pro rata Y, which is deemed as a public official, and such a crime of violating the Attorney-at-Law Act is a serious crime that causes damage to fairness in performing duties, infiniteness, and trust in society.

② Upon receipt of a request, the Defendant received large amount of money worth KRW 2.134 million in return for a request from M individual, by taking advantage of the form of a consulting contract, even though it is well aware that money was provided from L’s funds.

③ The Defendant is consistently and does not reflect on his criminal act, in a consistent defense that he cannot obtain.

The favorable circumstances for ○:

① The Defendant has no record of criminal punishment.

② The Defendant appears to have actually provided L with a certain amount of services according to the instant publicity agency contract.

Parts of innocence

1. Summary of this part of the facts charged

As described in paragraph 3-b) above.

2. Determination

As seen in Article 3-3 (c) of the Criminal Procedure Act, the facts charged fall under the case where there is no proof of crime, and thus, acquittal is rendered pursuant to the latter part of Article 325 of the Criminal Procedure Act.

Judges

Judges of the presiding judge;

Judges Oh Jeong-tae

Judge Jina Award

Note tin

1) As determined by the lower court, it appears that it was actually concluded on February 27, 2009 (Evidence Record 872 pages).

2) ① A consulting on the enhancement of corporate image before and after sale, ② A company Posinginging consulting and implementation projects; ③ a comprehensive communication plan to deliver the company vision and development; ④ a consultation plan to establish strategies and measures for the possibility of changing corporate governance; ④ consultation on continuous communication consulting and press/IMO activities; ⑤ consultation on the foregoing strategies and results analysis; ⑥ Absing and analysis on all strategies; 7 Consultation Projects for Risk Management; 8 Consultation and assistance in matters as required by the Company;

3) On January 3, 2008, the contract contains both strategic consulting on external public relations activities, support for and strategic consulting on international R business activities, support for and strategic consulting on internal communication activities, and other advice on public relations activities, on April 1, 2008, strategic consulting on external public relations activities, strategic consulting on international R business activities, support for and strategic consulting on internal communication activities, strategic consulting, and other advice on public relations activities, and on December 1, 2008, the contract is similar both to the communication strategy consulting on overseas public relations activities, global brand activities consulting and services, support for and strategic consulting on international R business activities, and other advice on public relations activities.