(영문) 대법원 2015.8.19. 선고 2015도8537 판결

1. According to Article 383 subparag. 4 of the Criminal Procedure Act, an appeal may be filed on the ground that the amount of punishment is extremely unreasonable only for a case on which death penalty, life imprisonment, or imprisonment or imprisonment without prison labor for not less than ten years has been imposed. Thus, in this case where a minor sentence has been imposed against the Defendant, the argument that the sentence is too unreasonable is not legitimate

2. A. Under Article 116 of the Attorney-at-Law Act, the purpose of confiscation or collection is to deprive a criminal or a third party of money, valuables, entertainment, or other benefits, and to prevent him from possessing unlawful profits. Thus, in a case where part of the money and valuables received by a public official as a bribe in relation to a solicitation in accordance with the purport of actually receiving the money and valuables, or where the money and valuables are delivered to a public official in relation to the solicitation or to another intermediary, the benefit of the part is not actually attributable to the defendant, and the remaining money and valuables except the part should be confiscated or collected additionally (see Supreme Court Decision 93Do1569, Dec. 28, 1993).

B. According to the records, the defendant, who was parked in the Geumcheon Police Station on October 7, 2013 at the investigative agency, stated that he paid or delivered 5 million won (5 million won) out of the 20 million won under the pretext of solicitation to a police officer within his own vehicle parked in the Geumcheon Police Station, which was parked in D. In addition, he also stated that he paid or delivered 1.4 million won of meal expenses, and 3 million won of expenses for the uniforms of the stable-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-dong-si, and the defendant's above statement is maintained by the first instance court and is partly supported by each statement at the investigative agency and credit card settlement. Accordingly, the court below should have collected only the part which was delivered to the relevant public official or delivered under the pretext of solicitation among money received by the defendant, and the court below should have fully determined the legal principles on the presumption of money that the defendant received.

3. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.