A. Violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Embezzlement)

[Name of Crime Recognized: Specific Economic Crimes Aggravated Punishment, etc.

Violation of Law (Fraud)

(b) Offering of a bribe (the name of the crime recognized against Defendant A):

Violation of the Act on the Aggravated Punishment

(E) the name of the offence recognized against Defendant E, F, and G:

Occupational Breach of Trust, Partial Recognition of Defendant H

name of crime: Occupational Breach of Trust

(c) Violation of the Act on the Aggravated Punishment, etc.

The name of the crime recognized for C: Specific Economic Crimes

Aggravated Punishment, etc. (Fraud) and Occupational Breach of Trust)

(d) Property in breach of trust (known name of a crime: Occupational breach of trust);

(e) Acceptance of property in breach of trust (known crime: Occupational breach of trust);

1.(a)(b)

A

2.(c)

C

3.(c)

D

4.2

E

5.2

F

6. b. d.

G

7.2

H

8. E.

1

Defendant A, C, D, and Prosecutor (Defendant A, C, E, F, G, H, and I)

Attorney EM (private election for Defendant A)

Attorney EA, EI, EJ, DZ, EK, and EL (private vessels for Defendant C)

Attorney EN (the national election for Defendant D)

Law Firm J (Defendant H and I)

Attorney EO, K, L, M

Seoul High Court Decision 2015No122 Decided July 1, 2015

October 29, 2015

The part of the lower judgment against Defendant C is reversed, and that part of the case is remanded to the Seoul High Court.

All appeals by Defendant A and Defendant D and Prosecutor against Defendant A, Defendant E, Defendant F, Defendant G, Defendant H, and Defendant I are dismissed.

The grounds of appeal are examined.

1. Examining the Prosecutor’s grounds of appeal, the lower court was justifiable to have rendered a not-guilty verdict on each part of the remainder of the facts charged except for the portion found guilty on the grounds as indicated in its reasoning. In so doing, the lower court did not err by exceeding the bounds of the principle of

2. As the identity of the facts charged or the facts charged of Defendant A’s grounds of appeal is a concept under the Criminal Procedure Act, it is necessary to consider the significance of the criminal procedure and the legal function of the criminal procedure. Therefore, whether the basic facts of the two crimes are identical or not can not be grasped solely from a purely social and legal point of view without completely excluding the normative elements. It is reasonable to view that the normative elements of the same natural, social, or criminal defendant’s act constitute a substantial part of the identity of basic facts (see Supreme Court en banc Decision 93Do2080, Mar. 22, 1994).

Examining the evidence duly adopted and examined by the lower court and the first instance court, it is justifiable for the lower court to have convicted Defendant A of violating the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud) on the grounds stated in its reasoning. In so doing, the lower court did not err by exceeding the bounds of the principle of free evaluation of evidence in violation of logical and empirical rules, exceeding the bounds of the principle of free evaluation of evidence,

3. As to the grounds of appeal on the amendment of the indictment by Defendant C, the amendment of the indictment shall be permitted only to the extent consistent with the facts charged, and where there is an application for amendment of the indictment to the effect that the facts constituting an offense for which identity of the facts charged is not recognized is added as the facts charged, the court shall dismiss the application for modification (Article 298(

According to the records, the prosecutor initially found Defendant C to be guilty of KRW 100,000,000 on April 21, 2014, and received KRW 200,000 from the 300,00,000,000 from the 40,000,000,000,000 from the 106,000,000,000,000,000,000,00,000,000,000 from the 10,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,00,000,00,000,00.

However, the facts charged in addition to the facts charged by Defendant C through the initial facts charged and amendments to indictment are different in terms of the date and means of the crime, method, amount of damage, legal interests from damage, and nature of the crime, and thus, it cannot be deemed that the basic facts are the same. Thus, it is not necessary to permit changes

Nevertheless, the court below admitted the defendant guilty of the modified charges after permitting the modification of the indictment. In so doing, the court below erred by misapprehending the legal principles on the identity of the facts charged and amendments to indictment, which affected the conclusion of the judgment

4. As to Defendant D’s ground of appeal

Examining the evidence duly adopted and examined by the lower court and the first instance court, the lower court was justifiable to have convicted Defendant D of violating the Act on the Aggravated Punishment, etc. of Specific Crimes (Bribery) against Defendant D on the grounds stated in its reasoning. In so doing, the lower court did not err by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by exceeding the bounds of the principle of free evaluation of evidence, or by misapprehending the legal doctrine on joint principal

In addition, under Article 383 subparagraph 4 of the Criminal Procedure Act, only in cases where death penalty, life imprisonment, or imprisonment or imprisonment without prison labor for not less than ten years has been imposed, an appeal on the grounds of unfair sentencing shall be allowed. In this case where a more minor sentence has been imposed on Defendant D, the argument that the amount of punishment is unreasonable is

5. Scope of reversal against Defendant C

For the same reason as seen in paragraph (3), the part of the judgment of the court below on the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud), which is the ancillary charge against Defendant C, should be reversed. As long as the above ancillary charge is reversed, the part on the violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (Bribery) concerning Defendant C, which is the primary charge against the same body, should be reversed. The remaining part on the charges of Defendant C, also on the concurrent charge under the former part of Article 37 of the Criminal Act, should be reversed.

6. Conclusion

Therefore, without further proceeding to decide on the remaining grounds of appeal by Defendant C, the part concerning Defendant C among the judgment below is reversed, and that part of the case is remanded to the court below for further proceedings consistent with this Opinion. The appeal by Defendant A and Defendant D and the Prosecutor as to Defendant A, Defendant E, Defendant F, DefendantG, Defendant H, and Defendant I are all dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Sang-hoon

Kim Chang-suk

Chief Justice Cho Jae-hee

Justices Park Sang-ok