(영문) 대법원 2015.7.23. 선고 2013도7140 판결

All of the judgment of the court below and the judgment of the court of first instance against Defendant A shall be reversed. Defendant A shall be punished by imprisonment with prison labor for eight months.

However, with respect to Defendant A, the execution of the above punishment shall be suspended for two years from the date this judgment becomes final and conclusive. The amount of KRW 8,052,464 shall be collected from Defendant A.

The Prosecutor’s appeal against Defendant B is dismissed.

Reasons

The grounds of appeal are examined.

1. As to the Prosecutor’s Grounds of Appeal

A. As to the assertion on the accepted amount

The lower court determined, based on the circumstances stated in its reasoning, that the amount paid for the purchase cost of safe border among the money that Defendant B delivered to Defendant A by Defendant B cannot be deemed a bribe.

Examining the reasoning of the lower judgment in light of relevant legal principles and records, the lower court’s determination is justifiable, and contrary to what is alleged in the grounds of appeal, there were no errors by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules

B. As to the assertion on unlawful acts

Examining the reasoning of the judgment below in light of the records, the court below is just in holding that there is no evidence to acknowledge the fact that Defendant A committed an unlawful act, such as allowing Defendant A to smoke tobacco or allowing him to use public telephones beyond the limited time, and the offering of meat during the external work cannot be deemed an unlawful act committed in return. There is no violation of the principle of free evaluation of evidence in violation of logical and empirical rules, contrary to what is alleged in the grounds of appeal.

2. As to Defendant A’s ground of appeal

A. As to the assertion on the acceptance of bribe

In light of the reasoning of the lower judgment and the evidence duly admitted by the lower court, it is justifiable to have determined that Defendant A received KRW 5.22 million and KRW 2 million on Nov. 3, 2008, 2008, excluding the purchase cost, from May 22, 2007 to December 27, 2007, with respect to his duties, as bribe for the reasons indicated in its reasoning, and contrary to what is alleged in the grounds of appeal, the lower court did not err by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules.

B. As to the assertion on the concurrent imposition of fines

1) Article 2(2) of the Act on the Aggravated Punishment, etc. of Specific Crimes, which was amended and enforced by Act No. 9169 of Dec. 26, 2008 (hereinafter referred to as the "Special Crimes Aggravated Punishment Act") provides that "any person who commits a crime under Article 129, 130 or 132 of the Criminal Act shall concurrently impose a fine of not less than double but not more than five times the amount of the accepted bribery in the punishment prescribed for the crime (including the case of paragraph (1))" and requires the concurrent imposition of a fine that was not previously committed against the crime of acceptance of bribe. In light of the principle of unreasonable punishment under Article 13(1) of the Constitution and the provisions of Article 1(1) of the Criminal Act, "the establishment and punishment of a crime shall be governed by the Act at the time of the act of acceptance of bribe", and the amount of a fine calculated as provided for in Article 2(2) of the Special Crimes Aggravated Punishment, etc. of Specific Crimes shall be limited to the amount of the accepted bribery after the above provision.

Meanwhile, in a case where a public official borrowed money with indefinite or without interest in connection with his/her duties, the receipt of a bribe equivalent to the financial interest at the time of the loan, and the crime of acceptance of bribe is deemed to have already been completed (see, e.g., Supreme Court Decision 2011Do7282, Feb. 23, 2012).

2) The court below recognized, based on its employed evidence, that Defendant A borrowed 20 million won on May 22, 2007 with respect to his duties, 300,000 won on August 23, 2007, 1022,5 million won on October 30 of the same year, 300,000 won on March 12, 2008, 19 million won on June 14, 2009, and 300,000 won on June 14, 2009 x 1.6 million won on June 27, 2007, excluding the above 19 million won on May 22, 2007, 200 won on loan 200,000 won on loan 1.6 million won on loan x 1.6 million won on loan 1.3 million won on loan 1.6 million won on June 23, 2007.

3) However, considering the facts established by the court below in light of the legal principles as seen earlier, at the time when Defendant A borrowed KRW 4 million from Defendant B to the interest free of charge, the crime of bribery against the Defendant A at the time of borrowing the interest free of charge shall be deemed to have already been completed. Even if Defendant A did not repay the borrowed money to Defendant B, thereby obtaining pecuniary benefits equivalent to financial gains, it cannot be deemed that Defendant A continued to accept a bribe from Defendant B.

Nevertheless, the lower court determined otherwise, that Defendant A received legal interest equivalent to the legal interest from December 26, 2008 to June 14, 2009 after the enforcement date of Article 2(2) of the above Aggravated Punishment Act as a bribe. In so determining, the lower court erred by misapprehending the legal doctrine on the timing of acceptance of the crime of acceptance of bribe and the timing of acceptance of the crime of acceptance of bribe and Article 2(2) of the Specific Treatment Act.

Therefore, the part of the judgment of the court below against Defendant A is reversed, but this part of the case is deemed to be sufficient for this court to render a judgment, so it is directly decided as follows pursuant to Article 396(1) of the Criminal Procedure Act

Criminal facts and summary of evidence

The summary of facts constituting an offense and evidence recognized by this court is the same as that of the judgment below, and thus, they are quoted in accordance with Articles 399 and 369 of the Criminal Procedure Act.

Application of Statutes

1. Article applicable to criminal facts;

In general, Articles 131(1) and 129(1) of the Criminal Act (However, the upper limit of imprisonment shall be governed by the main sentence of Article 42 of the former Criminal Act (amended by Act No. 10259, Apr. 15, 2010).

1. Discretionary mitigation;

Articles 53 and 55(1)3 of the Criminal Act

1. Suspension of execution;

Article 62(1) of the Criminal Act

1. Additional collection:

Article 134 of the Criminal Act

The acquittal portion

Of the facts charged against Defendant A, the part other than the part found guilty as above, i.e., KRW 2280,00 paid by Defendant A for the purchase cost of a bribe received from Defendant A, i.e., the part that was 2.80,000 won and the part that was paid for the purchase cost of a bribe from Defendant B, provided to Defendant B for smoking at the time of work outside a prison, and the part that allowed Defendant B to be used in excess of the time limit for public telephone in a prison, constitutes a case where there is no proof of a crime for the same reason as the relevant column of the judgment below, and thus, the acquittal should be pronounced pursuant to the latter part of Article 325 of the

3. Conclusion

Therefore, without further proceeding to decide on the remaining grounds of appeal by Defendant A, the part against Defendant A among the judgment of the court below and the judgment of the court of first instance is reversed, and thus, it is so decided as per Disposition by the assent of all participating Justices on the bench. The prosecutor’s appeal against Defendant B is dismissed.