[1] The intent of denying the admissibility of evidence of a non-voluntary statement, and the person who bears the burden of proof of its voluntariness (=public prosecutor)

[2] Where emergency arrest does not meet the requirements and constitutes an illegal arrest, and whether it is admissible as evidence of the protocol of examination of suspect prepared during illegal arrest (negative)

[3] The meaning of duties in the crime of bribery and the standard for determining whether the amount received by a public official constitutes a bribe as an unfair profit with a quid pro quo relation

[4] In a case where a person repeatedly commits the same kind of crime under a single and continuous criminal intent in the crime of bribery and the legal interest in the crime is the same, whether the comprehensive crime is established (affirmative)

[5] The meaning of "public official taking advantage of his/her status" in the crime of mediation and acceptance of bribery

[6] The method of calculating the amount of the accepted bribery where a public official received entertainment

[1] Article 309 of the Criminal Procedure Act / [2] Article 200-3 (1) of the Criminal Procedure Act / [3] Article 129 of the Criminal Act / [4] Article 129 of the Criminal Act / [5] Article 132 of the Criminal Act / [6] Article 129 of the Criminal Act

[1] Supreme Court Decision 97Do3234 delivered on April 10, 1998 (Gong1998Sang, 1400), Supreme Court Decision 2001Do3931 Delivered on October 8, 2002 (Gong2002Ha, 2758) / [2] Supreme Court Decision 200Do5701 Delivered on June 11, 2002 (Gong2002Ha, 1720) decided on March 27, 2009 (Gong2003Sang, 1117) / [3] Supreme Court Decision 209Do378 delivered on April 17, 1997 (Gong197, 1968) / [3] Supreme Court Decision 2009Do3949 delivered on March 27, 2005 (Gong309Do20949 delivered on April 29, 2005)

Defendant

Defendant

Attorney Seo-sung et al.

High Court for Armed Forces Decision 2003No329 Decided December 16, 2003

The appeal is dismissed.

1. As to the Voluntaryness of the confession of the defendant

The purpose of denying the admissibility of evidence of a confession without voluntariness is to prevent in advance any illegal and unfair pressure that infringes on the fundamental human rights of the suspect in order to make a confession regardless of the authenticity of the confession itself as it does not fit the substantial truth and thus, it is necessary for the prosecutor to prove that there is any reasonable and detailed fact to suspect voluntariness, not the defendant, but the prosecutor must prove to resolve the question of voluntariness (see Supreme Court Decisions 97Do3234, Apr. 10, 1998; 2001Do3931, Oct. 8, 2002, etc.).

(4) In light of the fact that the defendant's act of refusing to make a statement at the time of interrogation of the military police officer's suspect, such as ① The court below stated that the defendant had the right to refuse to make a statement under the provisions of Article 232 (2) of the Military Court Act, i.e., the defendant's signature and seal on each interrogation protocol, and the defendant's refusal to make a statement among the contents of the interrogation protocol prepared by the military prosecutor, it cannot be deemed that the defendant did not have been notified of the right to refuse to make a statement by the military prosecutor at the time of interrogation. ② The defendant seems to have consulted about the contents of the defendant's statement after attending the prosecutor's office with his defense counsel at the time of emergency arrest, as well as the defense counsel at the time of the examination of the warrant, and the fact that the defendant's act of refusing to make a statement at the time of interrogation and the court below's second trial, which did not seem to have been delayed due to lack of evidence that the defendant had no right to attend the investigation, such as violence and coercion, etc.

2. As to the admissibility of each suspect interrogation protocol

As an exception to the principle of warrant requirement, an emergency arrest is exceptionally permitted only when all the requirements of Article 200-3 (1) of the Criminal Procedure Act are met. An emergency arrest without legal basis constitutes an illegal arrest. Here, whether the requirements of emergency arrest are met or not shall be determined based on the situation at the time of the arrest rather than on the circumstances revealed ex post facto, and it shall be determined based on the situation at the time of the emergency arrest. In addition, if a prosecutor or judicial police officer's judgment on whether the requirements are met is considerably unreasonable in light of the empirical rule in light of the situation at the time of emergency arrest, the arrest shall be deemed illegal arrest. Such illegality violates the warrant requirement requirement, and the protocol of examination of suspect interrogation prepared during the arrest is illegally collected evidence, and unless there are special circumstances (see Supreme Court Decisions 200Do5701, Jun. 11, 2002; 2003Mo27, Mar. 28, 2003).

Examining the records in light of the above legal principles, the military prosecutor secured the testimony of Nonindicted 2 from the 11st M&C commander at the request of the Defendant for convenience provision in connection with the construction of Samjin-gu corporation. On May 17, 2003, the prosecutor voluntarily attended the military prosecutor's summons and prepared the first protocol of examination of suspect by the Defendant. After securing the testimony of Nonindicted 3 and Nonindicted 4 from the 11st M&C manager at the request of the Defendant in connection with the selection of a designated hospital for physical examination of soldiers, the prosecutor arrested the Defendant around May 18, 2003 at the time of emergency arrest around 03:50. The defendant requested the personnel management officer to examine Non-Indicted 3 to be selected as a designated hospital for physical examination of the illness for 202, and the fact that it is difficult to recognize that the defendant had been in charge of emergency arrest based on the reasoning that it could be reasonably admitted that the defendant had exercised the right to receive or promised the consideration from Seongbuk Hospital, and that it was difficult to recognize that the defendant had exercised de facto influence over the defendant's.

The Supreme Court precedents cited in the grounds of appeal by the defendant are inappropriate to invoke the case differently from this case.

3. As to each acceptance of bribe

A. Bribery is a legal interest directly protected to the fair performance of duties and the trust of the society. Thus, the crime of acceptance of bribe is established when the amount of money received by a public official as a whole is in quid pro quo, and there is no need to consider the existence of solicitation and the quid pro quo relationship, and there is no need to specify the act of performance of duties. Meanwhile, in the case of bribery, the duty includes not only the duty under the control of the public official, but also the duty under the control of the law, such as custom or actual duties under the jurisdiction of the public official, or the duty under the jurisdiction of the public official, or the duty under the jurisdiction of the decision-making authority, which can assist or affect the decision-making authority (see Supreme Court Decisions 96Do3378, Apr. 17, 1997; 2004Do1442, May 28, 2004; 2008Do1400, May 28, 2004).

B. The court below affirmed the judgment of the court of first instance that found the defendant guilty of this part of the charges that the defendant received a bribe from the above constructor in relation to the measures for entry of construction business operators, provision of convenience of construction, etc., on the ground that it is reasonable in light of the following circumstances acknowledged by the evidence, namely, the defendant consistently stated that he received the money as stated in the facts charged from Non-Indicted 5, Non-Indicted 6 and Non-Indicted 7, Non-Indicted 7, the representative director of the Sungdong Construction Co., Ltd., and Non-Indicted 7, and the representative director of the Tae Tae Tae Tae Taedae Construction Co., Ltd., the defendant and the above constructor were not sufficient to be considered as a person in a close-friendly relationship, and the defendant is in a position that may indirectly affect the construction work in the base as a commander of the Daegu District Office, and that the money received from the above constructor is a bribe. In light of the aforementioned legal principles, it cannot be said that the court below erred in the misapprehension of the rules of evidence, and there is no error in the misapprehension of law

C. In addition, the court below affirmed the first instance judgment convicting the Defendant of this part of the facts charged that the Defendant received a bribe in relation to the allotment of golf and the issuance of admission to golf courses, on the ground that it is sufficient to recognize that the Defendant’s confession at the prosecutor’s office is not a processed one, but a true one, and that it is sufficient to prove that the Defendant’s confession at the prosecutor’s office constitutes a bribe in relation to the issuance of admission to golf courses, as it is acknowledged that the duties are closely related to the performance of duties, i.e., the act of having close relations with the performance of duties, and as long as it is suspected that the receipt of money in relation to the grant of admission to golf courses, the right to recommend the issuance of admission to golf courses constitutes a bribe as a quid pro quo in relation to the performance of duties, since the Defendant, who is a field officer, has the authority to do so, has received money in relation to the recommendation of the guarantor’s duties. In light of the above legal principles, the court below erred in the misapprehension of legal principles as to the crime of bribery or the duty.

On the other hand, in the case of accepting bribery, where the same kind of crime is committed repeatedly for a certain period under the single and continuous criminal intent and the damage legal interest is the same, each crime shall be deemed to be a single comprehensive crime (see Supreme Court Decisions 90Do1588, Sep. 25, 1990; 99Do4940, Jan. 21, 2000; 99Do4940, Jan. 21, 200). Where the defendant, who is a senior secretary, has continuously received money in relation to the guarantee in the course of the issuance of a certificate of authorization for admission to golf courses, infringes the same legal interest under the single and continuous criminal intent, and it constitutes a single comprehensive crime where 4.8 million won has been received in total over seven times in relation to the assignment of golf courses and the issuance of certificate of authorization for admission to golf courses, and the judgment below to the same purport is correct, and there is no violation of a misapprehension of the legal principles as to the single comprehensive crime.

D. The court below affirmed the judgment of the first instance that found the defendant guilty of this part of the charges that the defendant accepted a bribe in relation to the recommendation of the senior secretary, on the ground that the defendant's recommendation of the senior secretary of the U.S. as the senior secretary of the U.S., was accepted, since he ordered the non-indicted 8 to find out the information about the non-indicted 9 for the recommendation of the senior secretary of the U.S. as the senior secretary of the U.S., the non-indicted 8's senior secretary, and the senior secretary of the U.S. recommended the non-indicted 9 as the senior secretary of the U.S. to recommend the non-indicted 9 as the senior secretary, and he reported it to the U.S. headquarters by allowing him to recommend the non-indicted 9 as the senior secretary of the military secretary, and the defendant received three million won from the non-indicted 8 as the defendant's senior secretary of the military secretary, and in light of the above legal principles, it cannot be said that there were errors in the misapprehension of facts and the rules of evidence, or the legal principles on job relationship

4. As to each referral of acceptance of bribe

A. The elements for the crime of bribery are that a public official accepts, demands, or promises a bribe in relation to the referral of matters belonging to the duties of another public official by taking advantage of his/her position. Here, the term "public official taking advantage of his/her position" cannot be deemed to constitute a case where he/she uses a private relationship, such as friendship, kinship, etc., but it constitutes a case where a public official who is legally or substantially affected by the handling of affairs handled by another public official uses his/her status, and there is no need for a special relationship, such as relationship, cooperative relationship, and supervisory authority (see, e.g., Supreme Court Decisions 9Do1900, Jun. 25, 1999; 99Do5294, Oct. 12, 2001).

B. The court below affirmed the judgment of the first instance that found the defendant guilty of this part of the charges that the defendant accepted a bribe in relation to the good offices of convenience provision, such as entry measures, at the time of construction, at the time and place specified in each charge, with Non-Indicted 2, since it is recognized that the construction of Samjin Construction Co., Ltd. was in progress with Non-Indicted 10, and that the defendant asked Non-Indicted 2 to the effect that Non-Indicted 10 is well-known, since entertainment offered by the defendant from Non-Indicted 10 was received by the non-Indicted 10, which can exercise de facto influence on the ledger as a manager of Samjin Construction Co., Ltd., the defendant was provided with the good offices of Non-Indicted 2, who is a facility manager, using his status to arrange matters related to the good offices of Non-Indicted 2, the facility manager, and thus, it is recognized that there is no error in the misapprehension of legal principles as to the crime of bribery by misunderstanding the facts against the rules of evidence or by misunderstanding the legal principles concerning the crime of bribery.

C. In addition, the court below found the defendant to have sufficiently recognized the fact that the defendant introduced Nonindicted 11 to the commander of the facility building site for the sake of Nonindicted 11 and arranged matters belonging to the duties of the commander of the facility building for the sake of Nonindicted 11, in light of the following circumstances, namely, that the defendant made a statement that the defendant had already obtained intelligence about the construction before he was in sight of the construction from Nonindicted 11 on July 2002, and that the defendant introduced Nonindicted 2 to the commander of the facility building site for the sake of pro-friendlyness, such as receiving visibility from Nonindicted 11, for the sake of being in sight from Nonindicted 11, and that it is difficult to view that there is an exchange relation between the market price of the two, and that there is no error of law by misapprehending the legal principles as to the fact that the defendant had been found guilty of the violation of the rules of evidence concerning the provision of forfeited materials at the time of the preceding 10th of August 31, 2002.

D. Meanwhile, the court below affirmed the judgment of the court of first instance that found the defendant guilty of this part of the charges on the ground that the defendant, who was provided entertainment from Nonindicted 11 at the time and at the place specified in the facts charged, was provided with entertainment by Nonindicted 11 at the time and at the time and place specified in the following facts, and that the defendant attended the air force commander and the leader, etc. for the purpose of enabling construction in the military unit by establishing a public works company, even though Nonindicted 11 operated a drinking water agency at the time, he attended the place where the air force commander and the leader, etc. participate in the ceremony for the purpose of allowing construction in the military unit. Thus, the entertainment provided by Nonindicted 11 as a public works company, which was provided by the court of first instance, was provided with the referral of matters belonging to the duties of Nonindicted 2, the facility building commander, using his status, and it is recognized that there is a quid pro quo in consideration of the above legal principles. In light of the above, the court below's fact-finding and judgment also did not err in the misapprehension of legal principles as to mislead facts against the rules.

5. On each coercion

The court below acknowledged the following circumstances based on its adopted evidence, namely, the defendant was in charge of the Gun of the Air Force Headquarters, the 11th M&A, and the 16th M&A as the Daegu Base commander. However, it appears that the Aeronautical Department has considerable influence on the situation where it is extremely difficult to promote officers due to the personnel affairs of officers and noncommissioned officers, and that the duty to observe and report the trends of officers seems to have been performed in the recent situation. Thus, the Aeronautical Department chief exercised direct or indirect influence on the general affairs of the military unit as well as the duties of the military unit, and thus, it seems that the failure to comply with the request by the head of the Aeronautical Department was in charge of the university hospital. While the physical examination was conducted mainly at the university hospital, it was remarkably small size of the hospital designated by the defendant only for 2002, in light of the legal principles that the defendant was forced by the head of the Aeronautical Hospital chief to directly or indirectly notify the head of the military hospital of the fact that he did not directly appoint the head of the military unit.

In addition, the court below affirmed the judgment of the court of first instance which found the defendant guilty of this part of the charges on the ground that, in light of the circumstances as mentioned in the preceding paragraph as well as the fact that the non-indicted 2, who is the commander of the installation unit, asked the defendant to have the non-indicted 11 conduct the construction of underground lanes three times from the defendant, and asked the non-indicted 12, who is the contractor of the underground lane construction, to call the non-indicted 12, who is the contractor of the construction work in the unit that is not directly related to the affairs of the base unit, by making the defendant request to the commander of the installation unit for the subcontract of the construction work in the unit that is not directly related to the affairs of the base unit by taking advantage of the position as the commander of the facility unit, allowing the non-indicted 2 to call the non-indicted 11 as the subcontractor, it shall be deemed that the crime of coercion constitutes the crime of coercion. In light of the records, it is correct and there is no violation of the rules of evidence

6. As to the acceptance of a bribe after an illegal action

The court below affirmed the first instance judgment convicting the Defendant of this part of the charges, on the ground that it can be recognized that the comprehensive promise was made in return for the selection of the designated hospital for the hospital for the hospital for the hospital for the hospital for the hospital for the hospital for the hospital for the hospital for the hospital for the hospital for the hospital for the hospital for the hospital for the hospital for the hospital for the hospital for the hospital for the hospital for the hospital for the hospital for the hospital for the hospital for the hospital for the hospital for the hospital for the hospital for the hospital for the hospital for the hospital for the hospital for the hospital for the hospital for the hospital for the hospital for the hospital for the hospital for the hospital for the hospital for the hospital for the hospital for the hospital for the hospital for the hospital for the hospital for the hospital for the hospital for the hospital for the hospital for the hospital for the hospital for the hospital for the hospital for the hospital for the hospital for the hospital for the hospital for the hospital for the hospital for the hospital for the hospital for the hospital for the hospital for the hospital for the hospital for the hospital for the medical for the hospital for the hospital for the hospital for the medical for the hospital for the hospital.

7. As to the scope of collection

In a case where the defendant gives entertainment together with the mineer and paid the amount required for the acceptance of the bribery, the defendant's acceptance of the bribery amount should first be recognized, and the amount should be equal to the defendant's acceptance of the bribe amount. If the amount required for the acceptance of the bribe amount is unclear, the amount should be equally divided and collected (see Supreme Court Decisions 94Do2687, Jan. 12, 1995; 99Do5294, Oct. 12, 2001; 1.50,000 won, or 80,000 won, or 50,000,000 won, or 1.50,000,000 won, or 1.5,000,000 won, or 1.5,000,000 won, of the defendant's acceptance of the bribe amount during the attendance of on April 12, 200.

8. Conclusion

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

Justices Kim Young-ran (Presiding Justice)