Whether cash or securities are subject to confiscation or collection in case where a statement of shares issued as a bribe is returned to a person in default or in return and re-delivery cash or securities equivalent to the face value (affirmative)

In a case where the statement of the number of units issued by the receiver is returned to the receiver, and cash or securities equivalent to the face value of the check in substitution for the check is re-issued to the receiver, and the consignee received it, the cash or securities are subject to confiscation and collection in view of the fact that the purport of Article 134 of the Criminal Act is that the consignee does not have illegal profits.

Article 134 of the Criminal Act

Defendant

Defendant

Attorney Hong Hong-soo

Seoul High Court Decision 91No1775 delivered on July 13, 1992

The appeal is dismissed.

We examine the grounds of appeal.

On the first ground for appeal

Examining the record, the court below accepted the measures that the defendant recognized as a policeman on October 1990 when he received the check of the party shares of this case, and there is no violation of the rules of evidence against the rules of evidence.

Therefore, there is no reason for all the arguments without examining them.

On the second ground for appeal

It is true that the defendant's defense counsel asserted that there was an error of law in trial as to the fact that the defendant's defense counsel had the intention to return the check of the unit of unit of this case and the defendant had the intention to return it. However, this is nothing more than the purport of denying the defendant's crime of this case. According to the records, the court below opened several court dates, and the defendant's defense counsel asked the defendant about this point, and according to the reasoning of the judgment below, the court below rejected it by judging it as No. 4 points in the grounds for appeal. Thus, there is no error

The issue is that it is unlawful to decide whether or not the defendant actually returned the check of this case. However, the court below recognized that the defendant received the check of this case and did not receive the check of this case as an intention to return the check of this case. Since the fact-finding of the court below seems to be justifiable, the issue of whether the defendant returned the check of this case after the fact-finding is not affected by the establishment of the crime of this case.

There is no reason to argue that there is a omission of judgment in the lower judgment.

On the third ground for appeal

1. In a case where a person who received a bribe takes custody of the bribe and returns it to the receiver, it is not possible to confiscate or collect it from the receiver. Thus, in a case where the receiver returns it to the receiver, it is not possible to confiscate or collect from the receiver, since one sheet of the unit number of this case received by the defendant is kept as it is, it will be the same as a lawsuit that can not be collected from the defendant. However, in a case where the receiver returned it to the receiver, the receiver redeems the check of the number of unit number issued by the receiver, and delivers the cash or securities equivalent to the face value of the check as a substitute for the check, and then delivers it again to the receiver, it is reasonable to view that the purport of Article 134 of the Criminal Act is the object of confiscation or collection, in view of the fact that Article 134 of the Criminal Act does not have illegal profits.

2. According to the records, since one sheet of this case of 10,00,000 won, which is a bribe received by the defendant, is returned to the non-indicted 1, who is the mineer (the defendant's protocol of examination of the defendant, the defendant's statement in the court below, the defendant's protocol of examination of the non-indicted 1, the prosecutor's protocol of examination of the non-indicted 1, the prosecutor's protocol of examination of the non-indicted 1, and the statement of non-indicted 2, the defendant's original statement of the non-indicted 1, and the non-indicted 3, the non-indicted 1,00,000 won bill of this case, and 1,00,000 won bill of this case and 1,00,000,000 won bill of this case and 1,00,000 won bill of this case and 3,00,000 won bill of this case and 3,000 won bill of the defendant's cashier's bill of this case are also issued.

3. Thus, the court below's decision that maintained the judgment of the court of first instance that collected 10,000,000 won from the defendant for the reason that the defendant already consumed as a bribe received and cannot be confiscated. The court below's decision that maintained the first instance court's decision that collected 10,000,000 won for the value of cash and cashier's checks is just and there is no error of law by misunderstanding legal principles concerning the confiscation and collection of bribery. The argument is without merit.

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