The case reversing the judgment of the court of first instance which found the defendant guilty on the grounds that it is difficult to believe all the statements made by donors, etc. corresponding to the above facts charged, and other evidences alone are insufficient to recognize them with respect to the facts charged in violation of the former Attorney-at-Law Act that the defendant received KRW 100,00

As to the facts charged in violation of the former Attorney-at-Law Act (amended by Act No. 8321, Mar. 29, 2007) that the defendant received money and valuables under the pretext of solicitation for promotion of public officials by receiving KRW 100 million from Gap as a reward for promotion, the defendant denies from the first prosecutor's office to the appellate court, and the defendant consistently denies that there is no such fact, and the defendant's statement by the donor Gap et al., who correspond to the above facts charged, is insufficient to recognize them on the grounds that there is an error of misunderstanding of facts in the judgment of the first instance that found otherwise guilty on the ground that there is an error of law in the misapprehension of facts in the judgment of guilty.

Article 111 of the former Attorney-at-Law Act (amended by Act No. 8321 of March 29, 2007); Articles 307, 308, and 325 of the Criminal Procedure Act

Supreme Court Decision 2005Do1904 Decided May 26, 2006, Supreme Court Decision 2007Do3798 Decided July 27, 2007, Supreme Court Decision 2007Do7112 Decided December 11, 2008

Defendant

Defendant

Kim Jong-mun

Attorney Jeong Sung-ho et al.

Incheon District Court Decision 2010Gohap276 Decided July 15, 2010

The judgment of the court below is reversed.

The defendant shall be innocent.

The summary of the judgment against the defendant shall be published.

1. Summary of the facts charged

The defendant is a person who has a friendly relationship with a politician from time to time with a member of the National Assembly and assistant of the Gu government, and referred to as an assistant for the first member of the National Assembly, etc.

Around January 2006, the Defendant: (a) from Nonindicted 2, who was aware of it in the preliminary support restaurant located in Dong-gu, Dong-gu, Dong-dong, Dong-gu, the Defendant received a request from Nonindicted 1 member of the Ministry of Oceans and Fisheries to promote Nonindicted 3 to the Director-General of the Ministry of Oceans and Fisheries at the Ministry of Oceans and Fisheries upon request from Nonindicted 1 member of the Ministry of Oceans and Fisheries; (b) “The head of the Gu is the personnel affairs of the Ministry of Oceans and Fisheries; (c) Nonindicted 3, who is on dispatch to the Director-General of the Ministry of Oceans and Fisheries upon request from Nonindicted 1 member of the Ministry of Oceans and Fisheries; and (d) there is a pro rata relationship with several members of the National Assembly, other than Nonindicted 1 member of the National Assembly; and (d) received KRW 100 million from the above Nonindicted 2 in return for the request.”

As a result, the defendant received money and valuables on the pretext of solicitation or good offices with respect to cases or affairs handled by public officials.

2. The judgment of the court below

The lower court determined that the instant facts charged was guilty when Nonindicted 2 et al. made a statement, and sentenced the Defendant to imprisonment with prison labor for a year and for a collection of KRW 100 million.

3. Summary of grounds for appeal;

A. Error of mistake

The Defendant did not receive KRW 100 million from Nonindicted 2.

B. Unreasonable sentencing

The punishment of one year of imprisonment and 100 million won of additional collection determined by the court below against the defendant is too unreasonable.

4. Judgment of the court below

A. The Defendant denies the facts charged in this case that there is no evidence that the first prosecutorial office had consistently received KRW 100 million from Nonindicted 2 to the trial court. While there was Nonindicted 2, 4, and 5’s statement that corresponds to the facts charged in this case as evidence that conforms to the facts charged in this case, as examined below, it is difficult to believe all of these statements and thus, there is no evidence to acknowledge the facts charged that the Defendant was issued KRW 100 million from Nonindicted 2.

B. Determination of the contents and credibility of the statements made by Nonindicted 2 and Nonindicted 4

(1) In the prosecutorial office, Nonindicted 2 stated that “I kyman loaned KRW 100 million to Nonindicted 5, who belongs to the Ministry of Land, Transport and Maritime Affairs for the solicitation of promotion to Nonindicted 3, who is a public official of the Ministry of Land, Transport and Maritime Affairs, and stated that “I am on January 6, 2006, 3, along with Nonindicted 4, when I am to the above preliminary support restaurant, and after completion of meals, I am to the Defendant, I am about the money of KRW 100 million, and thereafter I am to the Defendant at the same time on February 23, 2006, I am to the Defendant, I am back the money of KRW 100 million to Nonindicted 4 and returned the money of KRW 140 million to Nonindicted 5.” Meanwhile, the court below made a statement to the effect that “I am to the Defendant who was given the money of KRW 1200 million to the Defendant at the time of the instant preliminary support restaurant.”

(2) While Nonindicted Party 2 asserted that 100 million won was repaid to Nonindicted Party 5,00,000 won loaned from Nonghyup, Nonindicted Party 2 made a statement of KRW 100,000 to Nonindicted Party 1,000,000,000 to Nonindicted Party 1,000 won, according to the fact-finding results, Nonindicted Party 2 made a direct application for a general loan at the Dobcheon Agricultural Branch on February 15, 2006 and received KRW 100,000 from Nonindicted Party 2 on February 23, 2006, and received KRW 20141-51-(hereinafter omitted) from Nonindicted Party 1 to Nonindicted Party 2’s account, Nonindicted Party 2 made a statement of KRW 500,000,000 to Nonindicted Party 2,000,000,000 from the purchase price of the vehicle, and Nonindicted Party 2,000,000 won, 606,006.

(3) In the original trial, Nonindicted Party 2 stated in the court below’s decision that “I would have given the Defendant money with a solicitation for promotion of Park Jong-man’s Park in 2003, but did not have been well, again, that I would like to make a solicitation for promotion of the instant promotion to the Defendant in 2006, what was the reason for giving the money,” and that “I would like to find that there was the head of Nonindicted Party 1 National Assembly around winter in 2005, and that I would like to find that I would like to find that I would like to know that I would like to have a member of the National Assembly, and that I would like to take the face, and that I would like to take the phone, and that I would like to make another solicitation on April 29, 2003.” However, the mother of Nonindicted Party 1 National Assembly member was also inconsistent with objective facts.

(4) Although Nonindicted 2 was not in a economic situation, it is difficult to find out any special reason for Nonindicted 5 to make a solicitation for promotion to Nonindicted 3 while he borrowed KRW 100 million from Nonindicted 5 to Nonindicted 3 for the solicitation of promotion, and it is not easy to understand that Nonindicted 2 did not talk with Nonindicted 3.

(5) For the above reasons, Nonindicted 2 and Nonindicted 4’s statements that gave KRW 100 million to the Defendant around January 2006 are difficult to believe.

C. Determination of the contents and credibility of Nonindicted 5’s statement

As to the developments leading up to the preparation and return of the above KRW 100,000,00,000 was stated by the prosecution, “Non-Indicted 5,000,000 won was added to the money withdrawn from the bank at the end of January 2006, and was returned directly from Non-Indicted 2 or Non-Indicted 4 at the end of February 2006, Non-Indicted 5, and Non-Indicted 100,000 won was returned to Non-Indicted 5,000,000 won, which was 70,000,000 won (which was 7,000,000 won as compensation for land expropriation, and the number of non-Indicted 1,000,000 won was 50,000 won, and the non-Indicted 2,000,000 won was 1,000,000 won and 6,000,000 won, other than the non-Indicted 1,006,0.

Therefore, it is difficult to believe that Nonindicted 5’s statements are also reliable.

D. Other statements and investigation reports by Nonindicted 9 are insufficient to recognize the facts charged of the instant case.

E. Therefore, although the facts charged in this case constitutes a case where there is no proof of crime, the court below erred by misunderstanding the facts charged in this case and affecting the conclusion of the judgment. Accordingly, the defendant's assertion of mistake of facts is with merit.

5. Conclusion

Therefore, since the appeal by the defendant is well-grounded, the judgment of the court below shall be reversed in accordance with Article 364(6) of the Criminal Procedure Act, and it is again decided as follows.

The summary of the facts charged of this case is as stated in Paragraph 1., and as examined in Paragraph 4. above, since the facts charged of this case constitutes a case where there is no proof of crime, it is judged not guilty pursuant to the latter part of Article 325 of the Criminal Procedure Act, and the summary of the judgment against the defendant pursuant to Paragraph 2 of Article 58 of the Criminal Act shall be announced publicly.

Judges Kim Chang-suk (Presiding Judge)

(1) Non-Indicted 4 was the human ties of Non-Indicted 2, and the manager of the Maducheon-dong from 2001 to March 2006 operated by Non-Indicted 2.

(2) At the trial court, Nonindicted 2 stated that “There is no particular change in the current status of property when compared to the present and the present at the time of 2006, while holding only a house with the market value of 300 million won in the south-Si, Incheon, and South-do, and there is no other deposit assets.”

3) In relation to the motive for promotion solicitation, Nonindicted 2 stated in the prosecution that Nonindicted 3 was trying to help Nonindicted 3, on the ground that if Nonindicted 3 was the Director General of the Ministry of Oceans and Fisheries, he would assist him in the construction business (the Investigation Record 115 pages).

4) Nonindicted 5 stated in the party court that “The above KRW 100 million was not deposited in the account and the cash was used for the business fund, such as land purchase. However, the number of the purchased land and the price of the usual party, etc. are well gathered.”